AMP Workers Compensation Services Ltd v Chalkley

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

IN THE MATTER of an appeal under s.109 of the Magistrates' Court Act 1989

No. 6701 of 1997

AMP WORKERS COMPENSATION	Appellant (Defendant)
SERVICES LTD
v
KEVIN CHALKLEY	Respondent (Plaintiff)

---

JUDGE:	McDONALD, J.
WHERE HELD	Melbourne
DATE OF HEARING:	9 December 1997
DATE OF JUDGMENT:	13 August 1998
MEDIA NEUTRAL CITATION	[1998] VSC 29

---

CATCHWORDS:

Accident compensation, weekly payments - Totally and permanently incapacitated - Meaning of permanent - Issue estoppel - Accident Compensation Act 1985 ss.93B(1)(a) - (c), 2(a), (3) and (4); 114(2)(b)(ii)

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	MR R.P. GORTON, Q.C. with	Dunhill, Madden, Butler
(Defendant)	MR J. BOWMAN
For the Respondent	MR P. COISH	Slater & Gordon
(Plaintiff)

HIS HONOUR:

This is an appeal brought pursuant to s.109 of the Magistrates' Court Act 1989, from a final order of the Magistrates' Court in proceeding in which the appellant was the defendant and the respondent the plaintiff.
In 1987 and 1988 the respondent Chalkley, suffered injury arising out of or in the course of his employment with Taubmans Pty. Ltd. The injury sustained by him was principally to his neck. He underwent surgery to his neck in September 1989. Chalkley was paid weekly payments of compensation until approximately November 1991, at which time he resumed employment. He remained in employment until he was dismissed in approximately May 1992. Thereafter, Chalkley received weekly payments of compensation until or about 30 November 1993. At that time, payments of weekly compensation ceased to be made to him on a notice being served on him pursuant to s.93C of the Accident Compensation Act 1985. It was alleged that Chalkley had not, arising out of or in the course of his employment, suffered a serious injury within the meaning of s.93B(5) of the Act, nor was he totally and permanently incapacitated for employment.
Following receipt of that notice, Chalkley instituted proceedings against the Victorian Work Cover Authority in the Magistrates' Court at Melbourne alleging that in the course of his employment he sustained serious injury and/or he was totally and permanently incapacitated. He sought an order that weekly payments of compensation pursuant to s.93 of the Act be paid to him beginning on 1 December 1993.
Those proceedings came on for hearing before the Magistrates' Court on 28, 29 and 30 November 1994 as a contested hearing. At the conclusion of the evidence and after hearing submissions the magistrate, on 30 November 1994, delivered his decision in which he made a finding that Chalkley had suffered a serious injury within the meaning of s.93B(5) of the Act.. He also made a finding that Chalkley was totally and permanently incapacitated within the meaning of the Act. In an affidavit sworn in these proceedings by Timothy Ryan, counsel who appeared for the defendant in those proceedings, he deposed that the magistrate described the finding that he made that the plaintiff was totally and permanently incapacitated within the meaning of the Act "as a second or secondary finding". He has deposed that the magistrate said in delivering his decision that such finding, "may be superfluous given the finding in relation to serious injury." On that day, the Magistrates' Court ordered, inter alia - "1. The defendant pay the plaintiff payments of weekly compensation at the rate for serious injury for 1/1/93 to 30/11/94 and to continue in accordance with the law."
Section 93B(1) of the Act provided -
"(1) A worker is entitled, subject to and in accordance with this part, to weekly payments while incapacitated for work (not being a period during the first 26 weeks of incapacity) at which ever of the following rates apply - "
Thereafter and in sub-ss.(a), (b) and (c) there was set out the rates of weekly payments which a worker was entitled to receive while incapacitated for work respectively, "if the worker has a serious injury"; "if the worker does not have a serious injury but is totally incapacitated"; "if the worker does not have a serious injury but is partially incapacitated". Pursuant to s.93B(1)(a)(i) and (ii) the rates of weekly payments of compensation to which a worker was entitled while incapacitated for work if the worker had a serious injury differed between the situation where the worker had no current weekly earnings and where the worker had current weekly earnings. Chalkley, at the relevant time, had no weekly earnings and accordingly was entitled pursuant to the order of the Magistrates' Court to weekly payments of compensation at the rate fixed by s.93B(1)(a)(i).
By operation of s.63 of the Accident Compensation (Work Cover Insurance) Act 1993, liability of the Victorian Work Cover Authority in respect of the injuries suffered by Chalkley in the course of his employment in 1987 and 1988 were transferred to the authorised insurer, the appellant.
On or about 8 January 1996, the appellant served on Chalkley a notice pursuant to s.114(2)(b)(ii) of the Act.
By s.114(1) of the Act it was provided,
"(1) The authorised insurer, authority or self-insurer may in accordance with this act terminate a worker's entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments".
Section 114(2)(b)(ii) of the Act provided -
"(2) In addition to other grounds under this Act for termination or alteration of weekly payments, the authorised insurer, authority or self-insurer -
(a) ...
(b) may terminate weekly payments on the ground that -
(i) ...
(ii) the worker is not or is no longer entitled to weekly
payments;"
A notice served on Chalkley stated in part -
"After considering all available information we have determined that you are no longer entitled to weekly payments (section 114(2)(b)(ii)) as:
- you did not make every reasonable effort to participate in an
occupational rehabilitation service or return to work plan.
(Section 93B(2)(a)(ii) & 93B(4))."
The notice thereafter set out facts and reasons for the decision as notified.
As previously referred to, the rates at which Chalkley was entitled to receive weekly payments of compensation while incapacitated for work were those as provided by s.93B(1)(a), they being the rates applicable to a worker who "has a serious injury".
Section 93B(2)(a)(ii) provided -
"(2) A worker is entitled to receive weekly payments under this
section only if -
(a) where sub-s.(1)(a) applies, the worker
(i) ...
(ii) where the medical and other evidence indicates it is
desirable, makes every reasonable effort to
participate in approved occupational rehabilitation
service or return to work plan;"
Section 93B(4) in turn provided -
"Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (2) that are applicable in his or her case, the worker's entitlement to further weekly payments in respect of the injury shall thereupon cease and determine."
Chalkley disputed the decision of the appellant and after the parties had undergone a procedure of conciliation, under the Act, he issued proceedings on 28 May 1996 in the County Court against the appellant seeking orders, inter alia, for weekly payments of compensation pursuant to the Act from 9 February 1996. By those proceedings, Chalkley in effect sought reinstatement of weekly payments.
In those proceedings and by its defence, the appellant alleged that Chalkley was not entitled to compensation as he had not made every effort to participate in an occupational rehabilitation plan pursuant to s.93B(2)(a)(ii) and s.93B(4) of the Act and further, that he had failed to provide any supporting evidence or information at conciliation as required pursuant to s.56(9) of the Act.
The County Court proceedings were transferred to the Magistrates' Court at Melbourne by order made on 27 February 1997 pursuant to s.21(1) of the Courts (Case Transfer) Act 1991. The proceedings came on for hearing before the Magistrates' Court at Broadmeadows on 14 May 1997, comprised by the same magistrate who heard the proceedings on 28, 29 and 30 November 1994 and who made orders on that latter day as previously referred to. At the commencement of the proceedings, counsel who appeared for Chalkley, by way of a preliminary submission, submitted that the finding of the court on 30 November 1994 that Chalkley was totally and permanently incapacitated constituted an issue estoppel and that the notice of termination of payments of weekly compensation served on Chalkley on or about 8 January 1996 was invalid as it did not show a change in the circumstances of Chalkley. Those submissions were opposed by counsel for the appellant. No evidence was heard before the court.
On 6 June 1997, the magistrate delivered his ruling on those submissions holding in substance that by reason of his decision on 30 November 1994 that Chalkley was totally and permanently incapacitated the appellant was "estopped" from asserting that he had failed to satisfy the requirements of s.93B(2)(a)(ii) of the Act. Consequent upon the decision of the magistrate, on 23 July 1997, orders were made in the proceedings that -
"(1) Weekly payments to be reinstituted at the serious injury rate
(90%) (PIAWE) from 9/2/96 to continue in accordance with law.
(2) The defendant to pay plaintiff interest on payments under
s.114E(1)(c) of the Accident Compensation Act.
(3) Defendant to pay plaintiff's costs on Magistrates' Court scale E
including all reserve costs.
(4) Costs fixed for hearing on 23/7/97 at $300."
It is against those orders that the appellant appeals on a question of law to this court.
Before turning to the reasons for the decision of the magistrate, it is appropriate to make some short reference to the notice served on Chalkley on or about 8 January 1996, wherein there was set out as an attachment to it, reasons for giving the notice. The reasons set out a history of events during the period from 2 February 1995 to 11 July 1995, of steps undertaken in order to occupationally rehabilitate Chalkley by him undertaking a basic electronics course at a TAFE college to train and qualify him to engage in employment of a nature in respect of which he said he was interested, namely, the repair of refrigerators, small electrical appliances and vending machines. The reasons gave details of arrangements undertaken for him to enrol in such a course which required an attendance of 24 hours per week for a duration of six months. The reasons further stated that Chalkley had stated that he wanted to undertake the course and had stated that his treating doctor had supported his action, but that Chalkley did not take any step to enrol in the course but rather, three days before it commenced, he stated that he had decided not to undertake the course. The reasons further stated that on 14 November 1995 Chalkley had been medically examined by an orthopaedic surgeon who expressed the opinion that the basic electronics course was a reasonable option for Chalkley and that the surgeon felt that it would have been suitable for him.
In his written ruling the magistrate referred to the finding made by him on 30 November 1994 that Chalkley was totally and permanently incapacitated. He said, "A worker who is totally and permanently incapacitated means a worker whose total incapacity for work is not expected to change" and that "If a worker loses his capacity for work permanently then an invitation to undertake an electronics course in mid 1995 (seven months after the finding) with a view to future employment is, in my opinion, inconsistent with my finding on the evidence of total and permanent incapacity." The magistrate stated that he was satisfied that the appellant was estopped from asserting that the worker had failed to satisfy the requirements of s.93B(2)(a)(ii) in relation to an "occupational rehabilitation service" and further stated that it was his view that the notice did not show a change had occurred in the seven months since the finding of total and permanent incapacity. Further, in referring to his finding of total and permanent incapacity made by him on 30 November 1994, the magistrate stated that such finding had two components which he identified as - "First, the worker is totally incapacitated for work, Secondly, his incapacity is permanent". In his ruling, the magistrate expressed the view that "a worker who is totally and permanently incapacitated means a worker whose total incapacity for work is not expected to change".
By order of the Master made on 21 August 1997, the first question of law identified to be decided on this appeal was -
"Did the learned magistrate err in law in holding that the decision made by him on 30 November 1994 estopped the appellant from terminating payments of compensation on the ground that the respondent did not make every reasonable effort to participate in an occupational rehabilitation service or return to work plan (section 93B)."
Although the notice served on Chalkley on or about 8 January 1996 stated that the appellant had determined that he was no longer entitled to weekly payments as he did not make any reasonable effort to participate in an "occupational rehabilitation service or return to work plan", it is apparent from reading the notice and the reasons for giving the notice as set out in the attachment to it, that the grounds were confined to Chalkley not making every reasonable effort to participate in an "occupational rehabilitation" service. This is recognised in the ruling of the magistrate where he found that he was satisfied that the appellant was estopped from asserting that Chalkley had failed to satisfy the requirements of s.93B(2)(a)(ii), "in relation to an 'occupational rehabilitation service'". The crux of the magistrate's decision would appear to be that having found in November 1994 that Chalkley was totally and permanently incapacitated the appellant was "estopped" from asserting that by mid 1995 Chalkley had not made every reasonable effort to participate in an approved occupational rehabilitation service. That was because it was his view, as expressed, that to invite Chalkley to undertake an electronics course in mid 1995 with a view to future employment was inconsistent with his earlier finding that Chalkley was totally and permanently incapacitated.
It was the primary submission made on behalf of the appellant that the finding of the magistrate in November 1994 that Chalkley was totally and permanently incapacitated did not give rise to an issue estoppel which precluded the court from determining the issue whether in 1995 Chalkley had not made every reasonable effort to participate in an approved occupational rehabilitation service thereby depriving him of the entitlements to receive weekly payments of compensation and giving rise to the right of the appellant to terminate Chalkley's entitlement to weekly payments pursuant to s.114 of the Act.
On behalf of Chalkley it was not sought to be contended that the finding of the Magistrates' Court on 30 November 1994 that Chalkley was totally and permanently incapacitated, gave rise as a matter of general law, to the appellant being estopped from contending in the subsequent proceedings between it and Chalkley that at some time subsequent to that finding Chalkley had failed to comply with the requirements of s.93B(2)(a)(ii) rather it was submitted that on it being found by the court on 30 November 1994 that Chalkley was totally and permanently incapacitated then the appellant was not entitled thereafter to rely on the provisions of s.114(2)(b)(ii) and s.93B(2)(a)(ii) of the Act to terminate his weekly payments. On behalf of Chalkley it was submitted that although the provisions of s.114(2)(b)(ii) and s.93B(2)(a)(ii) were applicable to a worker who had been seriously injured, in the event of it being found by a court in proceedings such as the present that a worker was totally and permanently incapacitated his or her weekly payments could not be terminated under s.93B(2)(a)(ii) and s.114 on the ground that he or she did not make every reasonable effort to participate in an approved occupational rehabilitation service where medical and other evidence indicates that it is desirable. It was submitted that this was the effect of the provisions of s.93B(1), (2) and (3) of the Act.
The first matter to be addressed and which was raised on this appeal is whether the finding of the magistrate in the proceedings before him on 30 November 1994 that Chalkley was totally and permanently incapacitated under the Accident Compensation Act 1985 in some manner gave rise to an issue estoppel that prevented the appellant from asserting in the later proceedings before the Magistrates' Court that Chalkley had not made every reasonable effort to participate in an approved occupational rehabilitation service where medical and other evidence indicated that it was desirable. As I understand the reasoning of the magistrate in deciding that the appellant was "estopped" in the later proceedings from asserting that Chalkley failed to satisfy the requirements of s.93B(2)(a)(ii), it was that the finding on 30 November 1994, in the earlier proceedings, that Chalkley was totally and permanently incapacitated under the Act, determined that issue at the time relevant to the later proceedings and in particular in July 1995 and that being the case the appellant in the later proceedings was estopped from asserting that Chalkley was not totally and permanently incapacitated and therefore it could not in those proceedings be claimed that he had not made every effort to participate in an approved occupational rehabilitational service.
The principle underlying issue estoppel is that stated by Dixon, J in Blair v. Curran (1939) 62 C.L.R. 464 at 531 where he stated -
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
On this appeal it was not put in issue by any submission made to the court that there was no privity of interest in the appellant in these proceedings and the Victorian Work Cover Authority, the defendant in the earlier proceedings, which prevented the principles of issue estoppel being applied against the appellant in the present proceedings. Notwithstanding that no argument was addressed to the court on this matter having regard to the fact that in the two proceedings the defendants were not the same, it is necessary to shortly deal with this matter.
In Ramsay v. Pigram (1968) 118 C.L.R. 271 at 279 Barwick, CJ dealing with the nature of privity of interest in relation to principles of issue estoppel at p.279, said -
"Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. ... The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy."
In Carl-Zeiss-Stiftung v. Rayner (No.3) [1970] Ch.506 at 541 Buckley, J suggested that for there to be a privy in interest between a party to proceedings and another who is not party to the proceedings, the outcome of such proceedings must confer a benefit or impose an obligation on the other who is not party to the proceedings.

Section 63 of the Accident Compensation (Work Cover Insurance) Act 1993 was proclaimed on 30 June 1993. On the liability of the Authority to pay compensation to Chalkley in the circumstances of this case being transferred to the appellant by operation of that section it is difficult to see how the Work Cover Authority was a party to the proceedings first commenced by Chalkley in the Magistrates' Court in November 1993. This is particularly so as it appears from the affidavit of Ryan filed on this appeal that the party which give notice to Chalkley on 28 September 1993 that his weekly payments of compensation would cease on 1 December 1993 was AMP Workers Compensation Services (Vic) Ltd. It is sufficient for the purposes of this appeal to conclude that the decision in the earlier proceedings imposed on the appellant an obligation under the order made in those proceedings, such that if a determination in those earlier proceedings disposed of an issue once and for all between Chalkley and the defendant to these proceedings then it could not again be put in issue by the appellant in latter proceedings.

32	The question that must be decided is what issue was determined by the magistrate by his finding in the earlier proceedings that Chalkley was "totally and permanently incapacitated". "Total incapacity" was defined under s.5 of the Act to mean -

"in relation to a worker means an inability arising from an injury such that the worker is not able to return to work either in the worker's pre-injury employment or in suitable employment".

"Suitable employment" was defined under s.5 to mean -
"in relation to a worker, means employment in work for which the worker is suited (whether or not that work is available), having regard to the following -
(a)the nature of the worker's incapacity and pre-injury employment;
(b) the worker's age, education, skills and work experience;
(c) the worker's place of residence;
(d) the details given in medical information including the
medical certificates supplied by the worker;
(e) the worker's return to work plan, if any;
(f) if any occupational rehabilitational services are being provided to or for the worker".
The phrase "totally and permanently incapacitated" is not defined by the Act.
In McDonald v. Director-General of Social Security [1984] F.C.R. 345 the Full Court of the Federal Court considered the meaning of "permanently incapacitated" as contained in s.24 of the Social Security Act 1947 (C'th) which provided -
"A person above the age of 16 years who ... is permanently incapacitated for work ... shall be qualified to receive an invalid pension".
Woodward, J at p.361 said -
"The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.
In my view the true test of a permanent, as distinct from a temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future."
In my view, the test enunciated by his Honour has application to the meaning of the phrase "totally and permanently incapacitated" under the Act. The finding on 30 November 1994 that Chalkley was "totally and permanently incapacitated" under the Act was not more than a finding at time that he was totally incapacitated and that it was more likely than not that the total incapacity would persist in the foreseeable future. A finding that a person is totally and permanently incapacitated at a particular time does not mean that that person will in fact be totally incapacitated in the future. A number of factors subsequent to such a finding such as on "unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even the improvement in the labour market" or the opportunity to learn fresh skills from participating in an approved "occupational rehabilitational service" may bring an end to the incapacity or reduce it. The issue of a worker's incapacity and whether it is total at a particular time or whether it is total and permanent at a particular time may well vary as a fact from time to time. The finding by the court on 30 November 1994 that Chalkley was totally and permanently incapacitated did not give rise to an estoppel preventing the appellant from raising in subsequent proceedings between it and Chalkley the issue, that at a time subsequent to the finding of the court, that Chalkley was then not totally incapacitated or not totally and permanently incapacitated. The finding that as at 30 November 1994 that Chalkley was totally and permanently incapacitated was no more than a finding that it was more likely than not that such incapacity would persist in the future but it was not determinative of whether such incapacity did in fact persist in the future.
In my view, the magistrate was in error holding that the finding made by him on 30 November 1994, that Chalkley's incapacity was permanent meant that, "the incapacity existed in the past; it still exists; and will continue to exist indefinitely or into the foreseeable future". The finding that the incapacity was permanent was no more than at the time that the finding was made it was more likely than not that the incapacity would continue in the foreseeable future. That finding could not prevent or estop the appellant, in the subsequent proceedings between Chalkley and it, putting in issue the matter of fact that at the time relevant to those subsequent proceedings and being subsequent to 30 November 1994 the nature and extent of any incapacity that Chalkley had for work where such matter was relevant to a fact or matter in issue in the later proceedings. In the proceedings before the magistrate the capacity of Chalkley to engage in "suitable employment" was relevant to the issue whether Chalkley had made every reasonable effort to engage in an "occupational rehabilitation service". The finding by the magistrate on 30 November 1994 that Chalkley was at that time totally and permanently incapacitated did not raise an estoppel as a matter of general law preventing the appellant from relying on the provisions of s.93B(2)(a)(ii) as grounds to contend that Chalkley was not entitled to receive weekly payments under that section and putting that matter in issue in the subsequent proceedings. The finding of the magistrate to the contrary as a matter of general law and in reliance upon the principles of issue estoppel constituted an error of law.
My conclusion on this matter makes it unnecessary to consider the second question raised on this appeal as set out in the Order of the Master, which was whether it was open to the magistrate to hold that the finding made by him on 30 November 1994 involved a finding of fact that Chalkley was totally and permanently incapacitated for work.
Questions 3 and 4 as set out in the Order of the Master as questions of law to be determined were each based on the assertion that the magistrate had ruled that it was necessary for the appellant to demonstrate a change in Chalkley's circumstances in order for it to rely on the provisions of s.93B of the Act and that the notice served on Chalkley by the appellant was not a valid notice as it did not allege a change in the circumstances of Chalkley. Although in his ruling the Magistrate referred to the fact that the notice in his view did not show that a change had occurred with respect to Chalkley in the seven months subsequent to 30 November 1994, this observation did not form a basis for his ruling in my view. Accordingly, the questions do not need to be further considered.
The final question raised on the appeal was whether the learned magistrate provided any sufficient reasons for his decision. This question raises nothing of substance in this appeal. Although, as expressed I have concluded that the Magistrate was in error in concluding that as a matter of general law his finding of 30 November 1994 caused the appellant to be estopped from asserting that Chalkley had failed to satisfy the requirements of s.93B(2)(a)(ii) of the Act, he provided reasons and sufficient reasons for his decision.
I next turn to the specific submissions made by counsel for Chalkley by which, without relying on the general law principles of issue estoppel, he sought to uphold the general conclusion of the Magistrate that on it being found on 30 November 1994 that Chalkley was totally and permanently incapacitated the appellant could not terminate Chalkley's weekly payments on the ground that he had failed to comply with s.93B(2)(a)(ii). It was the submission of counsel for Chalkley that as the notice of the appellant given on 8 January 1996 purported to terminate Chalkley's entitlement to weekly payments in reliance on s.114(2)(b)(ii) and s.93B(2)(a)(ii) of the Act the magistrate correctly held that it was not open to the appellant to terminate Chalkley's weekly payments of compensation pursuant to those provisions of the Act as it had been found by the court previously that Chalkley was totally and permanently incapacitated. It was submitted that once there had been a finding that a worker was totally and permanently incapacitated under the Act the provisions of s.93B(2) did not apply to the worker as the worker was entitled to weekly payments of compensation in excess of 104 weeks after the worker was incapacitated by reason of the provisions of s.93B(3)(b) of the Act. It was submitted that s.93B(1) and (2) contained no reference to a worker who was totally and permanently incapacitated, therefore, sub-s.(4) had no application as the worker had no obligation to comply with the requirements of sub-s,(2).
In pursuing these submissions and central to the same, counsel for Chalkley submitted that pursuant to the Act there were four categories of workers who were entitled to receive weekly payments of compensation. It was submitted that the first three categories were those identified under s.93B(1)(a) - (c) being respectively a worker who "has a serious injury", a worker who "does not have a serious injury but is totally incapacitated", and a worker who "does not have a serious injury but who is partially incapacitated". It was submitted that the fourth category was a worker in respect of whom a finding had been made by a court that he or she was totally and permanently incapacitated for work. It was with respect to this latter category of worker that it was submitted that as s.93B(1) and (2) made no reference to such a worker and as such worker's entitlement to weekly payments did not cease after being incapacitated for 104 weeks by virtue of s.93B(3)(b) of the Act there was no obligation of the worker to comply with any provision of s.93B(2) and accordingly, the worker's entitlement to weekly payments did not cease by operation of s.93B(4).
In considering these submissions it is necessary to have regard to the provisions of the Act which entitled a worker to receive weekly payments of compensation.
Section 82(1) of the Act provided -
"(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act".
Section 93 provided -
"If a worker's incapacity for work results from or is materially contributed to by an injury which entitles the worker to compensation the compensation shall be in the form of weekly payments subject to and in accordance with this part".
The entitlement to weekly payments in respect of a period not being a period during the first 26 weeks of incapacity and at particular rates identified was that as provided by s.93B(1) of the Act. Within that sub-section there was no statutory provision that a worker who was totally and permanently incapacitated should be entitled to weekly payments in some identified amount.
Sections 93B(3) and (4) in turn provided -
"(3) The worker's entitlement to weekly payments under this section ceases after the worker has been incapacitated for 104 weeks unless the worker -
(a) has a serious injury; or
(b) is totally and permanently incapacitated.
(4) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (2) that are applicable in his or her case, the worker's entitlement to further weekly payments in respect of the injury shall thereupon cease and determine."
It is to be specifically noted that under sub-s.(3) the worker's entitlement to weekly payments which cease after the worker has been incapacitated for 104 weeks unless the worker has a serious injury or is totally and permanently incapacitated are the entitlements to weekly payments under s.93B. A worker who is entitled to weekly payments under s.93B(c) would not be able to receive weekly payments under the section after he or she had been incapacitated for 104 weeks as the worker who has an entitlement under that section is a worker who "does not have a serious injury but is partially incapacitated". However, sub-s.(3) would have application to a worker who is entitled to receive weekly payments in the amount identified in sub-s.(1)(b), being a worker who "does not have a serious injury but is totally incapacitated" if the total incapacity was permanent. Other than that provided by sub-s.(1)(b) no separate or other entitlement to weekly payments of compensation were provided by s.93B for such worker during the period that the section applied to either before or after the worker had been incapacitated for 104 weeks. In my view, s.93B(1)(b) applied to and provided entitlement of weekly payments of compensation for a worker who did not have a serious injury but who was totally incapacitated for work, including such a worker in respect of whom a finding had been made that the total incapacity was permanent. This would be so during the period in respect of which s.93B applied including that under sub-s.(3). The fact that a finding of total and permanent incapacity may have been made in respect of such worker would not put the worker into some separate category of entitlement to weekly payments. Insofar as s.93B(1)(b) applied to a worker whose incapacity had been found to be total and permanent, I am of the view that the provisions of .s.93B(2)(b) also had application to such worker. Accordingly, such worker would be entitled to receive weekly payments under s.93B if he or she complied with the provisions of s.93B(2)(b).
Similarly, in my view, the provisions of s.93B(1)(a) had application to a worker who had a serious injury and who was found to be totally and permanently incapacitated for work. The only provision providing entitlement to such worker to weekly payments of compensation were those provided by s.93B(1)(a). No separate or other entitlement to weekly payments was provided by s.93B for a worker who had a serious injury and was found to be totally and permanently incapacitated. Such a worker's entitlement to weekly payments did not cease after the worker had been incapacitated for 104 weeks by operation of sub-s.(3) as the worker had a serious injury. In my view, a worker who had a serious injury and who had been found to be totally and permanently incapacitated for work had an entitlement to receive weekly payments under s.93B(1)(a) only if the worker complied with the provisions of sub-s.(2)(a).
The conclusion I have reached is that where under the provisions of s.82(1), 93 and 93B of the Act a worker was entitled to receive weekly payments while incapacitated for work and such worker had a serious injury and was found by a court to be totally and permanently incapacitated for work or did not have a serious injury but was totally incapacitated and it had been found by a court that the total incapacity for work was permanent then such respective workers had an entitlement to weekly payments for compensation pursuant to s.93B(1)(a) and (b) of the Act. The Act provided no other provision for such respective workers being entitled to weekly payments of compensation than those provided at the relevant time by s.93B(1)(a) and (b) of the Act. I do not accept the submission made by counsel on behalf of Chalkley that such respective workers, where a finding of total and permanent incapacity has been made, would be in a category different to workers otherwise entitled to weekly payments under s.93B(1)(a) and (b) of the Act and that therefore the provisions of sub-s.(2)(a) or (b) would have no application to such workers.
The fact that Chalkley had a serious injury and was found by the Magistrates' Court on 30 November 1994 to be totally and permanently incapacitated for work did not result in the entitlement of Chalkley to weekly payments during the relevant time being other than that provided by s.93B(1)(a). In my view, such being the case, the provisions of sub-s.(2)(a) had application to Chalkley's continued entitlement to weekly payments of compensation during the period relevant to s.93B. The provisions of s.93B(1), (2), (3) and (4) gave no basis for it being concluded that as it had been found that Chalkley was totally and permanently incapacitated for work the appellant was "estopped" from asserting that he had failed to satisfy the requirements of s.93B(2)(a)(ii) of the Act.
On the pleadings there were issues of fact raised for determination of the court, including whether Chalkley had failed to make every reasonable effort to participate in an approved occupational rehabilitation service in circumstances thereby giving rise to the entitlement of the appellant to terminate, pursuant to s.114(2)(b)(ii) Chalkley's entitlement to weekly payments. It was and remains necessary for the court to determine this issue on relevant evidence to be called before it. The court was in error in making the orders that it made on 23 July 1997.
It follows that the appeal should be allowed, the order made at the Magistrates' Court at Broadmeadows on 23 July 1997 should be set aside.

---

[1998] VSC 29

13 August 1998