Antonelli Investments Pty Ltd v Keogh
[2022] WADC 61
•1 JULY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ANTONELLI INVESTMENTS PTY LTD -v- KEOGH [2022] WADC 61
CORAM: VERNON DCJ
HEARD: 4 APRIL 2022
DELIVERED : 1 JULY 2022
FILE NO/S: APP 87 of 2021
BETWEEN: ANTONELLI INVESTMENTS PTY LTD
Appellant
AND
DEREK KEOGH
Respondent
ON APPEAL FROM:
For File No: APP 87 of 2021
Jurisdiction : WORKERS' COMPENSATION ARBITRATOR SERVICE (WA)
Coram: ARBITRATOR R SMITH
File Number : A102452
Catchwords:
Workers' Compensation - Interpretation
Legislation:
Legislation: Workers' Compensation and Injury Management Act 1981 (WA), s 18(1), s 58, s 59, s 60, s 61, s 62, s 84, s 247(2)(b), s 247(5), s 247(7)(a)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr J J Sheldrick |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | Hall & Wilcox (Perth) |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Airlite Cleaning Pty Ltd v Bosevski (Unreported, CM 115/02 (Hogan PM), 31 January 2003
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Regis Aged Care Pty Ltd v Hunter [2017] WADC 12
Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50
Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992)
The State of Western Australia (Department of Education) v Leek [2014] WADC 10
VERNON DCJ:
By a notice of appeal dated 30 November 2021, the appellant seeks leave to appeal the decision of a WorkCover WA arbitrator, Mr R Smith, dated 2 November 2021, dismissing an application under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
In the proceedings before the arbitrator the appellant had applied for orders under both s 60 and s 62 of the Act, in the alternative. The appeal concerns the arbitrator's decision to dismiss the s 60 application without hearing on the basis that it was not open to the appellant to bring an application pursuant to s 60 in the alternative to an application pursuant to s 62.
By notice dated 16 March 2022, the respondent indicated that he did not intend to take part in the appeal and would accept any order made by the Court, other than an order as to costs.
An arbitrator's decision may be appealed with leave of the court: s 247(1) of the Act. Leave may not be granted unless a question of law is involved, which included an error of mixed law and fact: s 247(2)(b) of the Act; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (Pullin JA). If leave is granted, the appeal proceeds by way of a review of the decision, and the court may affirm, vary or quash the decision, or make any decision that should have been made in the first instance: s 247(5) and s (7)(a) of the Act.
Grounds of appeal
The notice of appeal sets out the following grounds.
1.The arbitrator erred in law in finding (at [22] and [23]) that the appellant could not raise s 60 [of the Act] in the alternative to s 62 [of the Act] in that:
(a)the arbitrator found correctly (at [22]) that he would only need to consider the s 60 case after making a decision in the respondent's favour in the s 62 case;
(b)there is no preclusion in the Arbitration Service to parties running cases in the alternative; and
(c)the [appellant] was obliged to include the s 60 point in the alternative rather than raising it in subsequent proceedings, having regard to the principles in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
2.The arbitrator erred in law in applying (at [20] and [21]) the decision of Parry DCJ in Regis Aged Care Pty Ltd v Hunter [2017] WADC 12 when that decision was overturned by the Court of Appeal in Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50.
3.The arbitrator erred in law in finding (at [33]) that, 'where a dispute is amenable to a s 62 application, a s 60 (sic) covering the substance of the dispute is not competent', is contrary to established legal principles that s 60 is available in situations of changed circumstances.
4.The arbitrator committed an error of mixed law and fact in finding (at [34]) that, 'the substance of this dispute is amenable to a s 62 application. The s 60 application also covers the substance of the dispute' when this is a meaningless finding and contrary to the established legal principle that s 60 is available in situations of changed circumstances.
Leave
The notice of appeal raises questions of law and it is appropriate that leave to appeal be granted.
Ground 1
Ground 1 raises the central issue in the appeal; whether the arbitrator was in error in determining that it was not open to the appellant to bring an application pursuant to s 60 of the Act in the alternative to an application under s 62 of the Act.
Legislative background
In summary, the legislative background to s 60 and s 62 of the Act is as follows:
(a)section 18(1) of the Act provides that, subject to the provisions of the Act, an employer is liable to pay compensation to a worker who suffers a defined injury (workplace injury);
(b)clause 7 of sch 1 to the Act provides for the payment of weekly payments to a worker who has a total or partial incapacity for work as a result of a workplace injury;
(c)section 58 of the Act provides for an arbitrator appointed under the Act to determine the employer's liability to make weekly payments, where the employer has been given notice of a claim for weekly payments but has not commenced making those payments;
(d)section 59 of the Act requires a worker who commences remunerated work with someone other than the employer to notify the employer and, at the employer's request, to provide particulars of that employment, including the remuneration for the work. Section 59(7) allows the employer to discontinue or reduce weekly payments in accordance with the particulars given. Under s 59(10), a worker who disputes the discontinuation or reduction of weekly payments may apply for an order of an arbitrator that they be reinstated.
Sections 60, 61 and 62 of the Act provide, as follows:
60Discontinuing or reducing weekly payments, order as to
(1)Where weekly payments are made to a worker pursuant to this Division, the employer may apply at any time for an order of an arbitrator that such payments be discontinued or reduced.
(2)If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended or reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
61Discontinuing or reducing weekly payments without order
(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of the arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them to such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
(2)Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement -
(a)informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein; and
(b)informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his injury; and
(c)containing such other information as may be prescribed.
…
(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payments shall not be discontinued or reduced.
(4)Upon the hearing of an application referred to in subsection (3) the arbitrator shall -
(a)adjourn the application on such terms as the arbitrator thinks fit; or
(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
…
62Reviewing and discontinuing, suspending or changing weekly payments
(1)Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2)An arbitrator may, instead of discontinuing, reducing or increasing weekly payments, suspend the weekly payments from the date of the order until such time as is specific in the order.
Section 84, referred to in s 61(1) provides that a worker who returns, or attempts to return to work, and who is unable, on account of the workplace injury, to work or continue to work, is not to be deprived of any entitlement to compensation, by reason of the return, or attempt to return, to work.
The proceedings before the arbitrator
It is not in dispute that the respondent had suffered a workplace injury whilst employed as a bricklayer on a full-time basis, and that the appellant's liability to make weekly payments to the respondent had been accepted.
The terms of the appellant's application before the arbitrator were as follows:
Please see Annexure A submissions noting 1. Section 60 genuine dispute as to liability. 2. Section 62 review of weekly payments (discontinuance or in the alternative reduction). 3. Section 71 recovery of weekly compensation to which the respondent was not lawfully entitled.
In relation to the s 62 dispute, 'Annexure A' said in summary that orders were sought under that section because:
(a)the evidence demonstrated that the respondent had capacity for pre-injury duties on an unrestricted basis; and
(b)video surveillance contradicted the history the respondent had given to the medical expert that he had not undertaken any work activities since a previous review, and had no current plans to return to work.
The application went on to say, in 'Annexure A':
[28]If Orders are not made pursuant to Section 62 of the Act (contrary to our submissions above) then in the alternative, the Applicant submits that:
(a)given the level of discrepancy between the [respondent's] subjective complaints and the objective observations, the true level of the [respondent's] capacity for work and functionality has not been able to be established and, as a result, there exists a genuine dispute as to the liability to pay weekly compensation pursuant to the Act; and
(b)Orders should be made for suspension or discontinuance of weekly payments accordingly pursuant to Section 60 of the Act.
In his responsive document, the respondent said, in summary, that:
(a)he had attended a worksite on two days and had, in short intervals, lifted bricks and performed work as a bricklayer;
(b)he did so on an unpaid, and ad hoc, basis to test his capacity to return to work as a bricklayer, and did not perform full‑time duties as a bricklayer; and
(c)the evidence showed no more than he was fit to commence rehabilitation, which he was willing to do.
The arbitrator's reasons
The arbitrator found, at [33], that where a dispute is amenable to a s 62 application, a s 60 application covering the substance of the dispute was not competent. The arbitrator's reasons for this conclusion were as follows:
21Although [Regis Aged Care Pty Ltd v Hunter] dealt with the relationship between s 60 and s 61, rather than between s 60 and s 62, the analysis of the statutory scheme suggests that where s 62 is an available enabling provision for an employer, the employer should not be able to make an application in relation to substantially the same dispute under s 60.
22In this case, [the appellant] applies for a review by an arbitrator under s 62 of its liability to make weekly incapacity payments to [the respondent]. It also applies for an order under s 60 suspending, discontinuing, or reducing the weekly payments in the alternative. Put this way, [the appellant] is effectively inviting an arbitrator to make a determination about [the respondent's] capacity for work on the merits of the case, and, if it is unsuccessful, then invites the arbitrator to suspend, discontinue or reduce [the respondent's] payments anyway on the basis that there is a genuine dispute as to its liability to pay them. By advancing the s 60 application as the alternative to [the appellant's] primary s 62 case, the arbitrator would only need to consider the s 60 case after making a decision in [the respondent's] favour on the substantive s 62 determination of capacity. If [the appellant] was then successful on the s 60 application, it would then oblige [the respondent] to make a new application under s 58 or under s 62, after he had already been successful in the s 62 application. The difference would be that, under the new application, the burden of proof would lie with [the respondent].
23The arguing of the s 60 application in the alternative distinguishes this case from that of [Airlite Cleaning Pty Ltd v Bosevski], where the s 62 application was lodged subsequently to the s 60 application.
24In my opinion, the dismissal of the s 60 application for want of competence would not leave a lacuna in the statutory scheme.
25[The appellant] asserts that 'there are issues arising for determination under s 60 of the Act that do not arise under, and are separate and distinct from, the issues arising under s 62 of the Act.
26In my opinion, the ultimate issues for determination are the liability of [the appellant] to pay weekly incapacity payments to [the respondent] and the amount of those payments. The liability for those payments is dependent on the total or partial incapacity of [the respondent]. [The respondent's] level of incapacity is capable of review under s 62, where as in this case, there is an allegation of changed circumstances. There are no missing essential preconditions preventing [the appellant] pursuing its s 62 application.
27I accept that the application of s 60 is not confined to [the appellant's] initial liability to pay compensation but can also apply to a dispute as to ongoing liability which results from changed circumstances. However, regard must be had to the statutory scheme and the purpose of the legislation. As Owen J said in [Taylor v Star Broken Meats], 'the policy implicit in the legislation is that a worker who is injured in the circumstances contemplated in the Act should have his or her right to compensation preserved.' [14] The Compensation Magistrate in Bosevski referred to, 'the legislature's special regard to the entitlement of a worker to continue in receipt of payments once commenced.' [35]
28In the case of a s 61 application, the worker's entitlement to continue in receipt of payments once commenced is protected by the 21 day notification requirement in s 61(1). In the case of a s 62 application, the entitlement is protected by the imposition of the burden on the employer who seeks to discontinue or reduce payments to prove the worker's changed level of capacity. To allow a s 60 application in circumstances where a dispute regarding a changed level of capacity is amenable to resolution under s 62, would effectively allow the employer to reverse the onus, requiring the worker to prove - by initiating an application under either s 58 or s 62 - that they remained incapacitated.
29In Borevski, the employer's case was supported by two medical reports: according to one doctor, 'It is not possible to estimate his maximal capacity for work - in view of the gross exaggeration and inconsistency on the clinical examination.' The other doctor's view was, 'I cannot correlate my clinical findings with the degree of pain and cannot explain why he had not responded to his rehabilitation course at Hollywood.' [39] The Compensation Magistrate agreed with the employer that in such circumstances, 'The respondent's unutilised work capacity was unclear and was therefore not necessarily amenable to resolution pursuant to s 62 of the Act.' [40] It was this consideration that led the Compensation Magistrate to find the dismissal of the s 60 application would leave a lacuna in the scheme.
30In the current case, [the appellant] relies on the evidence of Dr Lucas. In distinction with the reports in Bosevski, Dr Lucas' reports of 27 May 2021 and 12 July 2021 contain clear statements regarding [the respondent's] capacity. Indeed, it is [the appellant's] case that the available evidence is sufficient to allow an arbitrator to review, and subsequently reduce or discontinue [the respondent's] weekly payments.
31In determining the Bosevski appeal the Compensation Magistrate held that s 60 was not available in circumstances where s 72 was available to rectify a worker's failure to comply with a rehabilitation order under s 157:
… If one applies the rationale behind the court's determination in [Taylor] that s 60 is to be kept within limited bounds, one must necessarily conclude that s 72 of the Act must be looked into, where applicable, before consideration can be given to bringing a s 60 application in relation to a failure to comply with a rehabilitation order. [36]
32This gives further support to the conclusion that the limits of the applicability of s 60 resulting from the scheme of the statute go further than cases where s 61 is said to apply. I understand the decision in Bosevski to go no further than saying that the fact that a s 62 application was filed in that case (subsequent to the s 60 application) was not fatal to the s 60 application in the particular circumstance of the case.
Judicial consideration of s 60, s 61 and s 62 of the Act
In Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992), it had been argued that, on its proper construction, s 60 was limited to the circumstances where the 'genuine dispute' went to the initial liability to make weekly payments, and did not apply where there were changed circumstances. Owen J said:
A strong argument against this interpretation is that it would leave something of a lacuna in the statutory scheme. The area of concern is where the worker is alleged to have 'commenced employment' or 'returned to work' in circumstances where s 61 does not apply. Section 59 applies where the worker has commenced employment with an employer other than the employer from whom he has claimed or is receiving weekly payments. The Board held that s 59 was not applicable in this case, presumably because the appellant's activities were engaged on his own behalf rather than as the servant of another employer. I am not convinced that this view is correct although it is not necessary for the disposal of this appeal to determine the matter.
The important feature of s 59 is that it is purely facilitative. It places on the worker an obligation to give the employer notice of, and details of, remunerative employment which the worker has commenced with another employer. It does not give the employer a right to commence proceedings to effect the cessation or diminution in the weekly payments as a result of the information tendered by the worker. That right must be found in other sections. In Department of Education v Kenworthy (1990) 3 WAR 1, this Court held that the phrase 'returned to work' in s 6 1(1) means a return to employment with the same employer upon whom the liability to make weekly payments falls: see per Nicholson J at 19. Accordingly, the respondent could not have had resort to the mechanism provided for in s 61 in the circumstances which I have outlined. Similarly, s 62 would not cover the situation unless the employer was in a position to go beyond establishing a 'genuine dispute' and to set up a case on the merits of the dispute.
The lacuna I referred to would be filled if s 60 were interpreted without the limitation contended for by the appellant. Section 60 would then apply to an 'ab initio' dispute and also to a dispute arising from a s 59 notification or otherwise from a self-employment situation. In saying this, I am not to be taken as closing of the area of operation of s 60. However, care needs to be taken to ensure it is kept within limited bounds.
The policy implicit in the legislation is that a worker who is injured in the circumstances contemplated by the Act should have his or her right to compensation preserved … The legislature had paid special regard to the entitlement of a worker to continue in receipt of payments once commenced. Hence the particularity with which s 61 has been drafted, with its requirement that the worker be given a 21 day period within which to consider his or her position before the adjustment of payments can take effect. This is a specific legislative provision. In my opinion, it cannot have been the intention of the legislature that the employer could circumvent this procedure by commencing proceedings under s 60 in a situation to which s 61 applies. However, in the circumstances of this case, s 61 does not apply.
…
In my opinion, the proper interpretation of s 60 is that it is not limited to matters going to the heart of the employer's liability to make weekly compensation payments. It can apply to a dispute which arises from changed circumstances, but not where the dispute is amenable to review under s 61 …
(emphasis added)
In Airlite Cleaning Pty Ltd v Bosevski (Unreported, CM 115/02 (Hogan PM), 31 January 2003, the original decision‑maker, the review officer, had dismissed a s 60 application on the basis that a subsequently lodged s 62 application was on foot, which was the appropriate vehicle for determining the employee's capacity for work, as well as on another basis not presently relevant. In the appeal it was contended:
(a)in the s 60 application, that there was a genuine dispute as to the worker's medical condition, because the worker had failed to mitigate his loss by refusing to comply with reasonable rehabilitation initiatives, which, in turn, was said to break the causal connection between the original injury and the worker's incapacity, if any; and
(b)in the s 62 application, that the worker was fit to return to his pre‑accident employment on either a full or part‑time basis, or that he had capacity to undertake alternative employment on either a full or part‑time basis.
Hogan CM found that the review officer was in error in dismissing the s 60 application, saying:
35It is clear from the Taylor decision that the availability of an application pursuant to s 61 of the Act excludes the ability to rely on a s 60 application given the legislature's special regard to the entitlement of a worker to continue in receipt of payments once commenced. Section 61 gives a worker a 21 day period within which to consider his or her position before an adjustment of payments can take effect.
…
40In Taylor's case, the court was concerned to limit the bounds of s 60 in order to prevent an employer circumventing the procedure set out under the provisions of s 61 of the Act. Section 60 of the Act provides for the suspension of payments, upon proof of a genuine dispute, until the final determination of that dispute. Section 62 effectively provides that payments continue until a review is determined.
41It is clear that where there is a genuine dispute, as to the level of incapacity arising following the payment of compensation, then it is open for an employer to bring an application pursuant to s 60 of the Act. Here there was material before the review officer, contained with various medical reports, that reveal the difficulty of assessing the respondent's level of incapacity, primarily due to the apparent discrepancy between the respondent's description of his pain and other symptoms and the lack of any physical explanation for the degree of impact described by the respondent. Counsel for the appellant submitted that it is clear that the respondent has some capacity given certification as to his fitness to undergo work trials. The difficulty for the appellant is in determining the level of capacity given the respondent's presentation. It is submitted that in such circumstances 'the respondent's unutilised work capacity was unclear and was therefore not necessarily amenable to resolution pursuant to s 62 of the Act.
42I agree with the submissions made by counsel for the appellant. In my opinion there is nothing in the reasoning of the court in Taylor's case to prohibit the filing of an application pursuant to s 60 of the Act when it is arguable that an application could also be brought pursuant to s 62 of the Act. In my opinion, the fact that a s 62 application was filed in this matter (subsequent to the s 60 application) is not a fact that is fatal to the s 60 application. It may well be that the particular circumstances of this case impede resolution pursuant to s 62 of the Act. The employer may not be able to establish the level of the respondent's capacity for work given the difficulty of assessing that capacity in this respondent's particular circumstances. Such a conclusion, following the dismissal of the s 60 application, would leave a lacuna in the statutory scheme. For the review officer to dismiss the s 60 application on the basis that that application sought to circumvent the provisions of s 62 of the Act resulted in an error of law.
Staude DCJ, in The State of Western Australia (Department of Education) v Leek [2014] WADC 10 [84] said that the dispute in Bosevski was not amenable to resolution pursuant to s 62 because there was material before the review officer revealing the employer's difficulty in assessing the worker's level of incapacity. His Honour went on to say [88]:
Despite many amendments to the Act since Taylor was decided the policy of the scheme with respect to weekly payments is still as Owen J described it. Once the weekly payments are commenced, an employer is not permitted to reduce or discontinue them except as authorised by the Act. His Honour held that s 60 was not limited to matters going to the heart of the employer's liability to make weekly payments, that is liability ab initio, but was, nevertheless, limited in operation to situations not covered by s 61 and s 62.
In Regis Aged Care Pty Ltd v Hunter [2017] WADC 12, referred to by the arbitrator and in the grounds of appeal, the employer made an application under s 60, and the worker contended that the application was invalid because the dispute was amenable to resolution under s 61 of the Act. Parry DCJ found that, in circumstances, the substance of the dispute fell within the scope of s 61 of the Act and, following Owen J's decision in Taylor v Star Broken Meats, the employer's application in relation to substantially the same dispute under s 60 of the Act was not competent.
In Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50 the employer did not challenge the proposition that, if s 61 is available to an employer, the employer may not invoke s 60. However, the Court of Appeal agreed with the employer's contention, in effect, that on the facts of that case, the dispute was not amenable to review under s 61, on the basis that Parry DCJ had erred in concluding that a medical practitioner had certified that the incapacity was no longer the result of the injury, which was an essential precondition to the employer invoking that section: [45], [46] and [56] - [61].
In relation to the applicable law, the Court of Appeal said:
47The effect of s 60 - s 62 may be summarised as follows. Under s 60, where an employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation, or as to quantum, the arbitrator may order that the payments be suspended or discontinued or reduced. By s 61, upon giving a worker 21 days' notice, an employer can discontinue or reduce payments if the worker has returned to work or if a medical practitioner has certified that the worker has a total or partial incapacity for work or that the incapacity is no longer a result of the injury. Otherwise, subject to presently immaterial exceptions, the employer may only discontinue or reduce payments if the worker consents or if an arbitrator so orders. If, upon receipt of the 21 days' notice, the worker disputes the right of his employer to discontinue or reduce the weekly payments, the worker may apply for an order of an arbitrator that the weekly payments not be discontinued or reduced. Section 62 permits an employer or a worker to apply to an arbitrator to discontinue, reduce or increase the weekly payments having regard to the present or past condition of the worker.
48An element of the statutory scheme is that once weekly payments have been commenced, an employer is not permitted to reduce or discontinue them other than as authorised by the Act.
49The evident scheme of these provisions was outlined by Murray J, with whom Roberts-Smith and McLure JJ agreed, in Qantas Flight Catering v Joncevski, as follows:
Section 61 finds its place among provisions which are designed to ensure that a worker in receipt of weekly payments of compensation has some guarantee of their continuance, except in the limited circumstances to which s 61(7) and (8) refer, or where it is determined that there is no continuing entitlement to them. As to that, the clear purpose of s 61(1) is to limit the circumstances in which the employer may unilaterally discontinue or reduce the payments without the consent of the worker or an order of the Directorate. If the statutory procedure is followed by both the employer and the worker the result on the hearing of a s 61(3) application, pursuant to s 61(4) and (4a), will be that there will be a capacity to examine the merits of the worker's entitlement to compensation.
In addition, under s 60, the employer may apply at any time for an order that the weekly payments be discontinued or reduced, or alternatively, under s 62, an application may be made to review the weekly payments. Where under s 60(2) the employer is seen to be genuinely in dispute as to the liability to pay compensation or the amount of such payments, then the payment may be suspended, in which case, under s 63, no compensation is payable, or the payments may be reduced in amount. There is, in my opinion, under the statutory scheme, ample capacity for the employer to protect its position where a genuine dispute exists. Alternatively, if the worker consents, then, as has been seen, the employer may act unilaterally without the benefit of an order to discontinue or reduce payments.
50In Star Broken Meats, Owen J, with whom Pidgeon J agreed and Rowland J generally agreed, construed s 61 and s 62. His Honour held that s 61 was a specific legislative provision requiring a 21 days' notice for the protection of the worker. Consequently, the Act should not be construed as permitting an employer to circumvent s 61 by commencing proceedings under s 60 in a situation to which s 61 applies. Otherwise s 60 is not limited and can apply to disputes arising from changed circumstances.
51These principles were applied by the arbitrator and by the primary judge. As we have said, there is no challenge on appeal to these general principles.
The appellant's submissions
The appellant says that the application before the arbitrator was brought on two alternative grounds:
(a)under s 62 of the Act, seeking an order discontinuing, alternatively reducing, the worker's weekly payments, on the basis that the worker was fit for his pre-accident duties, supported by the opinion evidence of an occupational physician, Dr Lucas, that the respondent was fit for his pre-injury duties;
(b)under s 60 of the Act, seeking suspension or discontinuance of weekly payments on the basis that the appellant had a genuine dispute as to its liability to make those payments to the worker, because the true level of the respondent's capacity for work could not be established given the discrepancies Dr Lucas said existed between the worker's subjective complaints and Dr Lucas' objective observations, referring in particular to the worker's assertion that he was not working being contradicted, in particular, by the surveillance evidence.
The appellant submits that the arbitrator found the matter before him was distinguishable from Bosevski because the appellant had raised s 60 in the alternative to s 62 rather than before the s 62 application was made. However, the appellant submits that there is nothing in the Act that prohibits parties from advancing alternative cases in one application.
The appellant submits, in effect, that the effect of the judgments of Owen J in Taylor v Star Broken Meats and the Court of Appeal in Regis Aged Care Pty Ltd v Hunter, is that s 60 could not apply to a dispute which was amenable to review under s 61 of the Act. However, the appellant submits that is not the case with respect to a dispute amenable to review under s 62. The appellant says, in effect, that Staude DCJ was in error in his Honour's obiter comment that s 60 could only apply to a dispute where s 61 and s 62 did not apply, as Owen J's decision in Taylor was limited to s 61.
The appellant also says that, where a dispute arose as a result of the alleged conduct of the respondent, such that the appellant could not satisfy its burden of proof under s 62, if the arbitrator was nonetheless satisfied there was a genuine dispute as to the appellant's liability to make weekly payments, it was appropriate that the respondent bear the onus of establishing liability afresh, s 60 being interlocutory in operation and a finding does not finally determine the respondent's rights to weekly payments.
Determination
To the extent that the arbitrator considered Borevski could be distinguished because, in the current case, the applications were made in the alternative and, in Borevski, the s 62 application was filed after the s 60 application, in my view the arbitrator was in error. In my view, the relative timing of the s 60 application could have no effect on whether the application was competent.
For the reasons set out below, to the extent that it appears from the reasons in Borevski that Hogan CM considered that the limitation in Taylor on the availability of review under s 60 where changed circumstances were alleged was confined to circumstances where the matter was amenable to review under s 61 and had no application to matters amenable to review under s 62, I consider that decision was incorrect.
However, I agree with the arbitrator that the decision in Borevski is distinguishable from the current case because it was predicated on the basis of the employer's medical evidence as to the worker's level of capacity being equivocal. Accordingly, on the facts, the dispute was not amenable to review under s 62: see Borevski at [41] and [42].
The particular lacuna, or gap, referred to by Owen J in Taylor v Star Broken Meats was rectified later in the year that case was decided, when s 59 was amended to introduce provisions enabling an employer to obtain particulars of the worker's employment with another employer and to discontinue or reduce weekly payments in accordance with those particulars subject to the worker's right to apply for an order that those payments be reinstated. However, that does not undermine the principle in Taylor; that s 60 has application beyond 'ab initio' disputes and can extend to disputes concerning changed circumstances within limited bounds.
In the quoted passage from Taylor in [17] above, Owen J said that the policy implicit in the legislation is that a worker should have their right to compensation preserved and that it could not have been the intention of the legislature that the employer could circumvent the specific legislative provision, referring to s 61, by commencing proceedings under s 60. In cases concerning changed circumstance, it was only where the dispute was not 'amenable to review' under that specific legislative provision, that there would be a space within which s 60 would be allowed to operate.
In Taylor, Owen J, expressly referred to s 62 as well as s 61, in determining there was a lacuna which allowed the operation of s 60 to changed circumstances, saying that s 62 would not cover the situation unless the employer could go 'beyond establishing a genuine dispute' and could 'set up a case on the merits of the dispute'.
In my view, consistent with the obiter comments made by Staude DCJ in Leek, the effect of Owen J's decision is that, in disputes asserting changed circumstances, s 60 applied only where there was no specific legislative provision of the Act under which the dispute was amenable to review, whether that be s 61, or 62, or any other provision of the Act. This provides the employer with an avenue for review where there is a lacuna in the Act but prevents the employer from circumventing the specific legislative provisions of the Act.
There is no basis, in my view, upon which to distinguish s 62 from s 61 in this respect. As the arbitrator said, both sections operate to protect the worker's continuing entitlement to the receipt of payments, although in different ways. Section 61 particularises the steps which must be taken before an employer can unilaterally discontinue or reduce payments, without the worker's consent or an order, where a medical practitioner has certified the worker has total or partial incapacity for work, or that incapacity is no longer the result of the injury. That section preserves a 21 day period after notice to discontinue or reduce payments is given, where those payments will continue, during which the worker may apply for a review. Section 62 provides, in effect, that the weekly payments can only be discontinued or reduced, upon an order being made, after the employer has satisfied the arbitrator that should be the case, having regard to the worker's condition.
What is said by the Court of Appeal in [50] of Regis, referred to in [23] above, is a summary of what Owen J said in Taylor, in the context of an application involving the interplay between s 60 and s 61, where there was no dispute that s 60 did not apply if the application was amenable to s 61. I do not understand this to be an obiter determination that s 60 was not excluded where the dispute was amenable to s 62.
In this case, the arbitrator proceeded on the basis that the medical evidence upon which the appellant relies is not equivocal as to the respondent's capacity, and was sufficient to support an application under s 62. Accordingly, the dispute was amenable to review under s 62, because the appellant was in a position to set up a case on the merits of the dispute under that section, and adduce evidence which, if accepted, would support a finding that the respondent had capacity for his pre-injury duties on an unrestricted basis. The ability to set up a case on the merits does not equate to being successful in that case. There is no lacuna in the statutory scheme by reason of the fact that the appellant may ultimately fail in that application.
The effect, in the circumstances of this case, of allowing the appellant to fall back onto s 60 and argue, based on the same evidence, that there is a genuine dispute as to the appellant's liability to make payments would, as the arbitrator said, enable the appellant to circumvent the operation of s 62 and, effectively, reverse the onus of proof.
That effect is not altered by the s 60 application being run in the alternative. As Staude DCJ said in Leek, the threshold in determining whether an employer's contentions ground a genuine dispute is lower than that required in a determination of the merits of the dispute. As such, in my view, the applications are not genuinely alternatives. In this case, the boundaries of the scope of the dispute in relation to the s 60 application fall entirely within the scope of the dispute in the s 62 application.
Accordingly, ground 1 is dismissed.
Ground 2
As to ground 2, as I have noted the Court of Appeal made no criticism of the law stated by the primary judge in Regis. In any event, in my view, the arbitrator was correct in his conclusions, for the reasons given above.
Ground 2 is dismissed.
Grounds 3 and 4
Grounds 3 and 4 essentially raises the same issue as Ground 1 and are dismissed.
Conclusion
For the reasons set out above:
1.Leave to appeal is granted; and
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
30 JUNE 2022
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