D'Er v Glemby International (Aust) Pty Ltd - [2016] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	D’Er v Glemby International (Aust) Pty Ltd [2016] NSWWCCPD 42
APPELLANT:	Christine D’Er
RESPONDENT:	Glemby International (Aust) Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-4872/15
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:	28 April 2016
DATE OF APPEAL DECISION:	31 August 2016
SUBJECT MATTER OF DECISION:	Monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory decisions – s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; application of the principles in House v R [1936] HCA 40; 55 CLR 499; ‘work capacity decisions’ and the application of Sabanayagam v St George Bank Limited [2016] NSWCA 145; jurisdiction of the Commission in matters involving ‘existing recipients of weekly payments’ – s 43(3) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	TurksLegal

ORDERS MADE ON APPEAL:

1. The orders in paragraphs [1], [4], [5] and [6] of the Certificate of Determination dated 28 April 2016 are confirmed.

2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 28 April 2016 are revoked.

3. The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant’s weekly entitlement from 10 December 2012 to 31 August 2015.

INTRODUCTION

This appeal raises issues going to the jurisdiction of the Commission to make an award for weekly payments, having regard to s 43 of the Workers Compensation Act 1987 (the 1987 Act), and the decision of the Court of Appeal in Sabanayagam v St George Bank Limited [2016] NSWCA 145 (Sabanayagam No. 2).

BACKGROUND

Christine D’Er (the appellant) worked for Glemby International (Aust) Pty Ltd (the respondent) as a hairdresser from about 1988 to 1992. She developed symptoms of carpal tunnel syndrome, and a ganglion, in her dominant right hand and wrist. She underwent surgery for these problems in February 1991 and November 1992.
The appellant ceased work from about June 1991. GIO General Ltd (the insurer) made voluntary payments for absences from work prior to 21 November 1991.
On 6 October 1992 the appellant, in Compensation Court proceedings, recovered ongoing weekly payments of $100 per week. There was a consent reduction of this award, to $50 per week, from 20 October 2003.
On about 7 June 2005 an agreement was registered pursuant to s 66A of the 1987 Act, providing for payment of lump sum compensation in respect of 19 per cent permanent loss of use of the right arm at or above the elbow, together with a sum pursuant to the then s 67 of the 1987 Act, for pain and suffering.
In Commission proceedings decided on 2 October 2007, the appellant received an award for ongoing weekly payments, at the full statutory rate pursuant to the then s 37 of the 1987 Act, for a worker with two dependent children, with a finding that she was totally incapacitated.
The respondent discontinued the appellant’s weekly payments from 10 December 2012, on the basis of a s 54 notice dated 29 October 2012, which relied on s 52A (now repealed) of the 1987 Act. The fundamental basis of the cessation of payments was that the appellant was asserted to be partially incapacitated, and “[o]ur evidence demonstrates that of [sic] you are ‘not seeking suitable employment’”.
The respondent also issued s 74 notices dated 3 August 2015 and 12 August 2015, following a claim by the appellant for further lump sum compensation. The second of these denied that the appellant was incapacitated, and said she “has work capacity or any incapacity is not due to a work related condition”.

THE ARBITRAL PROCEEDINGS

The proceedings were commenced by way of an Application to Resolve a Dispute lodged on 24 August 2015 (the Application). The date of injury was pleaded as 30 July 1990. The date of injury was described in the Certificate of Determination dated 28 April 2016 as 13 July 1990. It has not been suggested that anything turns on this discrepancy.
The current proceedings seek weekly compensation at the appropriate statutory rate, pursuant to s 37 of the 1987 Act, in its form prior to relevant commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act), from 10 December 2012, on a continuing basis. The appellant additionally seeks a further sum pursuant to s 66 of the 1987 Act, for an additional 11 per cent further loss of use of the right arm below the elbow, and a further sum for pain and suffering.
The matter was heard at an arbitration hearing, held on 24 November 2015 and 21 December 2015. Mr Morgan of counsel appeared for the appellant, and Mr Saul of counsel appeared for the respondent. No oral evidence was adduced.
It was common ground that the appellant was an ‘existing recipient of weekly payments’, for the purposes of the transitional provisions in Sch 6, Pt 19H of the 1987 Act (which have application to the 2012 Amending Act).
After some initial debate, it was common ground that s 52A of the 1987 Act, on which the respondent had relied to cease its weekly payments to the appellant, could (subject to its requirements being met) have application to the appellant at the time of such cessation (24.11.15, T7.31–8.5). Reference was made to Bush’s Pet Foods Pty Ltd v Badal [2014] NSWWCCPD 20 (Badal).
Ultimately, it was common ground that the appellant’s weekly claim would close as at 31 August 2015, on the basis that Sch 8, Pt 1, cl 17A of the Workers Compensation Regulation 2010 (the 2010 Regulation) applied the ‘weekly payments amendments’ (introduced by the 2012 Amending Act) to the appellant’s situation, from 1 September 2015 (24.11.15, T65.31–66.2).
The appellant amended the weekly claim, to be one pursuant to s 37, in its previous form, at the statutory rate for a worker with one dependent child (from 10 December 2012 to 30 September 2014) and a worker without dependants (from 1 October 2014 to 31 August 2015) (24.11.15, T66.9–68.25).
Towards the end of the appellant’s counsel’s submissions to the Arbitrator, the respondent’s counsel referred to a letter from the insurer to the appellant dated 29 November 2012. The Arbitrator responded “[t]here’s been a work capacity assessment” (24.11.15, T69.14). The respondent’s counsel said (at 24.11.15, T69.15–17):
“Yes. So I wish to raise an issue that there’s no jurisdiction to determine weekly compensation beyond 29 November 2012 if you’ve got a capacity assessment.”
This issue was not previously raised in any of the respondent’s notices issued pursuant to ss 54 and 74, or in the Reply. It had not been raised at the telephone conference conducted on 29 September 2015. The appellant’s counsel submitted that the respondent would need leave to add this jurisdictional issue as a “previously unnotified” matter in dispute, pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). He referred to the decision in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus) (24.11.15, T71.33–72.9). He stated that he opposed leave being granted (24.11.15, T76.31).
The parties addressed on whether the letter dated 29 November 2012 was a ‘work capacity decision’ within the meaning of s 43 of the 1987 Act. The appellant submitted that “absent an invocation of section 43 of the Act that is not a work capacity decision.” (24.11.15, T85.14–15). Debate regarding s 289A of the 1998 Act continued on the second hearing date. The Arbitrator delivered extempore reasons, in which he concluded that leave should be granted to raise the jurisdictional issue (21.12.15, T27.34–28.6). These reasons are further discussed below.
The parties made submissions going to the jurisdictional issue, and the substantive merits of the matter. The Arbitrator reserved his decision.
The parties subsequently made further short written submissions in response to Directions from the Arbitrator.
On 5 February 2016 the respondent submitted that the insurer’s letter dated 29 November 2012 “was, in effect, a WCD [work capacity decision]”. It submitted that the Commission had “no jurisdiction to determine any dispute about a WCD and is not to make a decision that is inconsistent with a WCD (Section 43(3) of the 1987 Act).” The respondent referred to the Presidential decision in Sabanayagam v St George Bank Limited [2016] NSWWCCPD 3 (Sabanayagam No. 1).
On 14 March 2016 the appellant made written submissions in which she said that she was an “existing recipient” as at “September/October 2012 and was not transitioned”. It was submitted that Sabanayagam No. 1 did not apply, as there was “no valid Work Capacity Decision”. The Commission had jurisdiction. Reference was made to arbitral decisions in Go v UltraFloor Installations Pty Ltd [2016] NSWWCC 42 (Go) and Goncalves v Menzies Port Jackson 2 Pty Limited [2016] NSWWCC 43 (Goncalves).

THE ARBITRATOR’S DECISION

There was an issue going to whether there was a causal relationship between the appellant’s injury, and a cramping condition affecting her right arm. The Arbitrator dealt with an argument by the appellant that this causation issue had been decided in the appellant’s favour in earlier decisions between the parties (Commissioner Grayson dated 6 October 1992 and Arbitrator Dupont dated 2 October 2007).
The Arbitrator said, at [22], that Commissioner Grayson found:
“… by necessary implication, that as at the date of his decision there was a causal link between the cramping condition of the right hand and injury to the right hand and wrist.”
The Arbitrator referred to the decision of Arbitrator Dupont, at [27] saying:
“Like Commissioner Grayson, she found, by necessary implication, that there was as at the date of her decision a causal nexus between the cramping/spasming condition and injury to the right hand and wrist in 1990.”
The Arbitrator, at [29], said:
“… there is no evidence that anything has occurred since the decisions in 1992 and 2007 which might have severed or superseded the causal link established by those decisions. Even if the insurer is not estopped from denying that the causal relation between cramping and injury in 1990 continues, there would need to be persuasive evidence that the situation had changed in order to satisfy the Commission that it should now make a contrary finding. There is no such evidence. On the contrary, the evidence suggests a continuation of the condition, and a continuing link.”

The Arbitrator, in the Certificate of Determination at dated 28 April 2016 at [1], made a finding, which is not challenged:
“1. The applicant suffers from a cramping condition in her right hand and wrist as a result of injury on 13 July 1990.”
The Arbitrator at [32] of his reasons referred to the basis of the respondent’s cessation of weekly payments pursuant to s 52A of the 1987 Act:
“… the insurer alleged that she was not seeking suitable employment. She denied this. She said that she was looking for suitable work, and produced diary notes to substantiate this. They detail a great many applications for employment from 7 April 2012 through to 2 January 2013.”
The Arbitrator, at [33] of his reasons, said of the diary notes:
“I am satisfied that they are likely to be genuine, and I accept that the worker was actively seeking work throughout the period that they cover. If the issue were within my power to decide, I would find that the insurer has not discharged its onus of proving that the worker was not seeking suitable employment, and its argument pursuant to section 52A would fail.”
The Arbitrator summarised the medical evidence and, at [47], concluded that there was a “common sense chain of causation” between the injury in 1990 and the “cramping condition of the right hand and wrist”, which he said “probably results from nerve injury during carpal tunnel release surgery”. At [49] he said:
“Were it within my jurisdiction, I would accept Dr Berry’s evidence that the worker has been totally incapacitated for work throughout the period of claim as a result of her injury in 1990, and find that she remains so.”
The Arbitrator then considered whether the insurer’s letter dated 29 November 2012 was a ‘work capacity decision’. He referred to Goncalves. He said at [52]:
“I draw the inference that the insurer intended only to make a work capacity assessment, and did not intend to make a work capacity decision.”
The Arbitrator referred to the Presidential decision in Sabanayagam No. 1. At [67] of his reasons the Arbitrator said:
“It follows that the insurer had decided, prior to giving the notice of 29 November 2012, that the worker had a present inability as a result of her injury such that she was not able to return to her pre-injury employment as a hairdresser, but that she was capable of suitable employment, that being defined in the notice as full-time employment as a call centre operator, receptionist or sales assistant. Unlike the situation in Sabanayagam, the decision notified on 29 November 2012 was a decision about ‘current work capacity’ as defined by section 32A, and falls within the ambit of section 43(1)(a).”
At [71] the Arbitrator said:
“The characterisation of a given decision as a work capacity decision or otherwise is not determined by the subjective intent of the decision maker, though that may be a relevant factor, but objectively having regard to the relevant statutory provisions and all the circumstances of the case. Having regard to all the circumstances, and notwithstanding my view that the insurer probably had no intention of making a work capacity decision, I am satisfied that the decision which it made prior to the issue of its letter on 29 November 2012 was a decision about Ms D’Er’s ‘current work capacity’ as defined, even if it also constituted a work capacity assessment for the purposes of section 44A.” (emphasis added)
At [72] and [73] the Arbitrator said:
“72. For these reasons, I find that the decision evidenced by the letter of 29 November 2012 constituted a work capacity decision within the meaning of section 43.
73. As a result, the Commission may not make a finding inconsistent with that decision, and I am prevented from finding that, as at 29 November 2012, the worker was incapable of full-time employment as a call centre operator, receptionist or sales assistant. I am also prevented from determining any dispute about that decision, including the claim for weekly compensation. No submission was made to the effect that the decision did not have a continuing operation, and it is unnecessary to consider that issue.” (emphasis added)
Flowing from these findings, the Arbitrator made the following formal finding and order at [2] and [3] of the Certificate of Determination:
“2. On or shortly before 29 November 2012, the insurer made a work capacity decision pursuant to section 43 of the Workers Compensation Act 1987.
3. By operation of section 43(3), the Commission lacks power to determine the claim for weekly compensation, or to make a decision in respect of that claim which is inconsistent with the said work capacity decision, and accordingly there is no award in respect of the claim for weekly compensation.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to time in s 352(4) of the 1998 Act has been met.
There is an issue in respect of the monetary threshold provision in s 352(3) of the 1998 Act. The appellant appeals against the orders in paragraphs [2] and [3] of the Certificate of Determination. These orders involved a claim for weekly compensation from 10 December 2012 to 31 August 2015. The appellant submits that the amount in dispute is greater than $5,000.
The respondent submits:
“It is self-evident from the COD that the arbitrator did not deprive the worker of any of the compensation. He merely found that the commission [sic] lacked jurisdiction in relation to the weekly compensation claim. In such circumstances, the threshold cannot be satisfied.”
This has similarities to the oral submission made by the respondent’s counsel on the issue of leave pursuant to s 289A(4) of the 1998 Act, where he said (at 21.12.15, T17.22–27):
“This has nothing to do with whether the worker should get weekly compensation or not. The worker has got rights with WIRO and rights within the Workers Compensation Act.
This is only to do with whether you can determine it. It’s got nothing to do with the worker’s rights.”
Neither of these submissions, made by the respondent, identified with any specificity what other form of relief was available to the appellant, outside the Commission.
There is provision for the administrative arrangements and functions of the Independent Review Officer, at Ch 2, Pt 3 of the 1998 Act. The functions of the Independent Review Officer are described at s 27 of the 1998 Act. These include “to review work capacity decisions of insurers”. The Independent Review Officer also can deal with complaints about insurers. The Independent Review Officer does not possess any more general decision making power which would extend to the dispute in the current matter, arising from the application of the former s 52A of the 1987 Act.
Section 44BB of the 1987 Act has provision for review of a ‘work capacity decision’ by an insurer, the Authority (as a merit review) and the Independent Review Officer. The review functions provided for in s 44BB go to review of work capacity decisions. They do not extend to a dispute relating to the operation of the former s 52A, which clearly is not a work capacity decision.
The Commission has exclusive jurisdiction in respect of a dispute going to the operation of the previous s 52A, it being a matter arising under the 1987 Act (s 105(1) of the 1998 Act). The employer carries the onus in such matters: Camilleri v Western Sydney Area Health Service (2000) 20 NSWCCR 499 at [5]. Although the 2012 Amending Act provided for the repeal of s 52A, the section had continued operation in respect of workers who were ‘existing recipients of weekly payments’. This situation continued until such workers were transitioned, and “the weekly payments amendments apply to the compensation payable”: Sch 6, Pt 19H, cl 6 of the 1998 Act. This is consistent with the Commission’s exercise of jurisdiction in Badal.
It follows that, if the appellant’s argument was correct, and she was not transitioned until 1 September 2015 pursuant to the operation of Sch 8, Pt 1, cl 17A of the 2010 Regulation, the dispute regarding her entitlement from 10 December 2012 to 31 August 2015 needs to be determined by the Commission. It was announced at the arbitration hearing, and was not treated as being controversial, that the appellant was an ‘existing recipient’ for the purposes of the transitional provisions, until 31 August 2015. The dispute in respect of the former s 52A of the 1987 Act cannot be appropriately determined pursuant to any of the ‘review’ mechanisms introduced pursuant to the 2012 Amending Act. Until the appellant was transitioned, the Commission had exclusive jurisdiction pursuant to s 105(1) of the 1998 Act.

In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (Regan) the appeal went to the admission of specialist medical reports, to be furnished to an Approved Medical Specialist to whom the matter was referred for assessment. In concluding that the threshold as to quantum in s 352 was satisfied, Fleming DP at [28] said:
“In this matter the Arbitrator’s decision concerns the admission of medical evidence and the consequent referral of the medical dispute to an Approved Medical Specialist (‘AMS’). The determination of certain medical issues by an AMS is binding on the parties, subject only to appeal to a Medical Appeal Panel. In these circumstances I accept that the evidence that is before the AMS is likely to be of critical importance to his or her determination of the medical issues. In this sense the decision clearly has the potential to put the amount of compensation claimed by the Appellant in issue (see also Devine v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 28).”
The decision in Regan, on this point, has been frequently applied in the Commission.
In the current matter, no weekly compensation was awarded by the Arbitrator. The weekly compensation claim was particularised in the Application at paragraph [5.1], subject to the amendment to close the period claimed at 31 August 2015. Roche DP, in Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 at [17], said:
“As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Hart claimed lump sum compensation totalling $32,250.00. Therefore, the quantum of compensation ‘at issue’ on appeal exceeds the $5,000.00 threshold in section 352(2)(a). As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).”
In the present matter, the compensation at issue was at the statutory rate pursuant to s 37 of the 1987 Act in its previous form, for in excess of two and a half years. The amount claimed clearly exceeds $5,000, and the whole of that amount was in issue. The Arbitrator’s orders at [2] and [3] of the Certificate of Determination finally concluded the appellant’s claim for weekly payments of compensation, in the Commission. For reasons set out above, the Commission had exclusive jurisdiction to deal with that dispute. The respondent referred to no authority in support of its submission that it was “self-evident” that the monetary threshold was not satisfied.
I am satisfied that the monetary threshold in s 352(3) is satisfied.

FRESH EVIDENCE

Neither party applied to rely on fresh evidence on this appeal.

ISSUES IN DISPUTE

The appellant appeals against the finding and order at paragraphs [2] and [3] in the Certificate of Determination, set out at [35] above.
The issues in dispute in the appeal are:
(a) Whether the Arbitrator erred in granting the respondent leave, pursuant to s 289A(4) of the 1998 Act, to raise the issue of ‘jurisdiction’.
(b) Whether the Arbitrator erred, in finding that the insurer’s correspondence dated 29 November 2012 was a ‘work capacity decision’, pursuant to s 43 of the of the 1987 Act.
(c) There was a further issue raised by the appellant in its submissions in reply. This is discussed below.

WAS THE DECISION APPEALED AGAINST (IN WHOLE OR IN PART) INTERLOCUTORY?

The respondent submits that leave pursuant to s 289A(4) of the 1998 Act, to raise the jurisdictional issue, was unnecessary. It is submitted that jurisdiction was “fundamental to the exercise of [the Commission’s] power”.
Whilst jurisdiction may have been “fundamental” to the exercise by the Commission of its power, the respondent’s challenge to that jurisdiction was based on specific allegations of fact which it ultimately made, going to the alleged existence of a ‘work capacity decision’, and the legal consequences. These were matters that were not raised by the respondent prior to the arbitration hearing.
Leave was necessary to raise such matters, so that evidence and submissions could be directed towards them. Indeed, the Commission does not have jurisdiction to deal with previously unnotified matters in the absence of leave: s 289A(3) of the 1998 Act, Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49 at [59]–[61], University of New South Wales v Kurup [2014] NSWWCCPD 19 at [75]–[76], Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32 at [48]. It follows that the respondent did need leave to raise the unnotified jurisdictional issue.
The respondent submits that, if leave was required, the Arbitrator’s decision to grant leave pursuant to s 289A(4) was ‘interlocutory’, within the meaning of s 352(3A) of the 1998 Act.
The respondent referred to the decision in Licul v Corney [1976] HCA 6; 180 CLR 213 (Licul). It submits that the decision pursuant to s 289A(4) “merely allowed the employer to raise a further argument”.
The appellant’s submissions say, of the grant of leave pursuant to s 289A(4):
“That part of the appeal being the arbitrator’s error in allowing the respondent to raise late notified matters, in particular the question of jurisdiction, might be characterised as an interlocutory decision. The appellant does not concede that it was an interlocutory matter given it potentially dealt with the final disposition of the claim in the Commission.”
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
In Licul at [11] Gibbs J said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
Applying Licul, the respondent’s submission, that the grant of leave simply allowed the respondent to raise a further argument, is clearly correct. The grant of leave to raise the issue of jurisdiction did not finally dispose of the rights of the parties. However, the Certificate of Determination dated 28 April 2016, which is the decision appealed against, did (see [39]–[49] above).

LEAVE IN RESPECT OF THE INTERLOCUTORY DECISION

The question then becomes whether it is “necessary and desirable for the proper and effective determination of the dispute” to grant leave to appeal. The respondent submits, correctly, that “the worker has not advanced any reasons as to why leave should be granted”.
In Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31; 10 DDCR 174 Roche DP at [17] said:
“Parties are reminded that, when leave to appeal is required because the decision appealed is interlocutory, the application for leave should be made in the documents filed when the appeal is lodged. The Commission is not to grant leave to appeal ‘unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute’. This requires a consideration of the nature of the dispute and the orders sought on appeal.”
There was an issue regarding whether the Arbitrator’s order, granting leave pursuant to s 289A(4) of the 1998 Act, was interlocutory. Submissions, going to the granting of leave, should have been included in the Application to Appeal.
The basis of the Arbitrator making no award, in respect of the weekly claim, was his acceptance of the respondent’s argument that the respondent had made a ‘work capacity decision’ pursuant to s 43 of the 1987 Act. This was an argument the respondent was only allowed to advance on the basis of the grant of leave. If there was relevant error in that discretionary decision, such that the grant of leave should be set aside, this has the potential to decide the outcome of the appeal.
Additionally, if a relevant ruling is interlocutory, questions with respect to it may be raised on appeal once a final determination is made: Dunphy v Boney [2010] NSWWCCPD 111 at [88]–[90]. The final determination in the current matter, at least in respect of the claim for weekly compensation, was made on 28 April 2016 (see [40]–[50] above).
In the circumstances, I am satisfied that it is necessary and desirable, for the proper and effective determination of the dispute, that leave to appeal be granted pursuant to s 352(3A) of the 1998 Act, in respect of the decision regarding leave pursuant to s 289A(4) of the 1998 Act. To the extent to which it is necessary, I grant such leave.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE GRANT OF LEAVE PURSUANT TO SECTION 289A(4) – GROUND ONE

The Appellant’s Submissions

The appellant refers to a number of the matters identified in Mateus as relevant to exercise of the discretion pursuant to s 289A(4). It submits:
(a)     the decision to dispute the claim on the basis of the alleged making of a ‘work capacity decision’ was only made during submissions by counsel;
(b)     the insurer did not act promptly to bring the unnotified matter to the attention of the Commission and all other parties;
(c)     there was no explanation given for the unreasonable or unexplained delay in giving notice;
(d)     the appellant was first made aware of the unnotified issue when it was raised during submissions, and
(e)     there was no merit or substance in the issue raised.
Having regard to the general conduct of the respondent, and the principles in s 354(3) of the 1998 Act, the appellant submits that leave should not have been granted.

The Respondent’s Submissions

The respondent submits:
(a) leave pursuant to s 289A(4) was not required, for the reasons raised in submissions at the arbitration hearing;
(b) leave pursuant to s 289A(4) was discretionary, and the appeal on this issue is on the basis of the principles in House v R [1936] HCA 40; (1936) 55 CLR 499 (House v The King). Reference was made to the statement of such principles in Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 (Micallef). Error consistent with those principles was not demonstrated;
(c) the Arbitrator stated that he was persuaded by the “merit and substance” of the application for leave, and
(d) the appellant did not raise prejudice.

Discussion

The respondent’s argument, that it did not require leave to raise the jurisdictional argument, has been dealt with above.
I accept that ground one relates to a discretionary order, and the principles in House v The King have application. In Micallef Heydon JA (Sheller JA and Studdert AJA agreeing), describing those principles at [45], said:
“As a result, Garling DCJ had to make a discretionary decision on a matter of practice and procedure - an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)     made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more ‘final’ date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described.”
The appellant’s submissions have not sought to specifically address the above principles. The appellant’s submissions are consistent with her seeking to argue that the Arbitrator failed to give sufficient weight to those matters she raised, by reference to Mateus.
The principles in Mateus are well known, and regularly applied in the Commission. It is unnecessary that I recite them for current purposes. That decision, at [38] and [48], sets out multiple matters which may be relevant to the exercise of the discretion pursuant to s 289A(4). Obviously not all of the listed matters will be relevant in all cases.
The respondent’s compliance, with its obligation to raise the previously unnotified matter in a timely manner, was poor. The respondent ceased payments of weekly compensation to the appellant, on the basis of a notice pursuant to s 52A of the 1987 Act (in its previous form), dated 29 October 2012.
The respondent’s argument, in respect of s 43(3) of the 1987 Act, was based on a single document, the insurer’s letter to the appellant dated 29 November 2012. I infer that the insurer was in possession of a copy of that letter, from when the original was forwarded to the appellant. The insurer gave notice pursuant to s 54 of the 1987 Act, of its actions based on s 52A of the 1987 Act, in its letter dated 29 October 2012. It there informed the appellant that, if a dispute arose, the appellant could apply to the Commission for determination of it. The insurer at no stage, prior to the arbitration hearing, informed the appellant that it contended that this position had changed.
Although a copy of the letter dated 29 November 2012 was attached to the respondent’s Reply, the Reply did not refer to any jurisdictional argument based on the letter. The Reply stated that the issues were “as per dispute notice(s) attached to the Application”.
The Arbitrator, on 24 November 2015, spent some time teasing out the issues, before counsel commenced dealing with evidentiary matters and making submissions (24.11.15, T8.26). There was no suggestion, on the respondent’s part, that a jurisdictional argument would be pursued based on the letter dated 29 November 2012. The appellant’s counsel then addressed at some length, on the prior proceedings between the parties, findings that had been made, and the merits of the respondent’s reliance on s 52A. The respondent’s counsel eventually referred to the letter dated 29 November 2012 (24.11.15, T68.29–69.13), and then said (at 24.11.15, T69.15–17):
“Yes. So I wish to raise an issue that there’s no jurisdiction to determine weekly compensation beyond 29 November 2012 if you’ve got a capacity assessment.”
This was the first reference to the unnotified matter. It was a matter which, in the respondent’s submission, was asserted to deprive the appellant of the right to have her dispute, about the application of s 52A and the associated claim for weekly payments, dealt with by the Commission on its merits. Such tardiness on the part of the insurer, in how and when it raised the matter, was quite unacceptable. It was a significant factor weighing against exercise of the discretion pursuant to s 289A(4) in its favour. The only explanation, for the fact that the matter was raised at that time, was that the respondent’s counsel had advised the respondent that the letter (at 21.12.15, T19.1–5):
“… has the construction of a work capacity decision which would trigger section 43… So it’s a legal point. I take responsibility for it.”
Did the Arbitrator fail to give sufficient weight to these matters?
The respondent submits that it was not necessary to “slavishly” follow Mateus. It was necessary to have regard to “the interests of justice” (21.12.15, T18.16–19).
The Arbitrator, in his extempore reasons, referred to the various factors set out at [38] and [48] of Mateus (21.12.15, T24.1–25.22). He referred to the delay in raising the unnotified matter (21.12.15, T25.31–26.2). He stated “[t]hat is not a factor which weighs in favour of the grant of leave.” (21.12.15, T26.18–20).
The Arbitrator referred to the unnotified matter as one of “merit and substance”, and said that if he exercised a power which he did not have, “the decision would be liable to vitiation on appeal” (21.12.15, T26.32–33). He said (at 21.12.15, T26.33–27.2):
“It is a matter that goes to the heart of the claim for weekly compensation. That is a matter which weighs strongly in favour of the grant of leave.”
The Arbitrator considered various other matters, including the conduct of the parties, and concluded (at 21.12.15, T27.32–28.6):
“As will be seen from the above, some factors weigh in favour of the grant of leave; others do not. Most of the factors are neither here nor there. It is a matter of determining, ultimately, what is in the interests of justice. In my view, notwithstanding the lengthy delay and the absence of reasons for it, the issue is of such substance that the interests of justice require that it be aired and determined by me. For those reasons I grant leave.”
The Arbitrator referred to the various factors set out in Mateus, which were potentially relevant to the s 289A(4) application. He specifically considered a number of these which he regarded as relevant on the facts before him. He correctly observed that the granting of leave was subject to “the interests of justice”. He concluded that the unnotified matter was of substance, and that, in his view, it had merit. As a consequence, it was in the interests of justice that the grant of leave be made, notwithstanding the substantial delay in raising the issue, and the absence of a satisfactory explanation for it.
The Arbitrator took relevant matters into account, and gave them appropriate weight. He did not take irrelevant matters into account. He referred to the relevant legal principles and applied them. He did not make an error of legal principle. He did not make a material error of fact. The result is not “so unreasonable or so unjust as to suggest that one of the above categories of error occurred”. The appellant has not persuaded me that the Arbitrator was in error, applying the principles in House v The King. Indeed, the appellant did not specifically address those principles in her submissions. Ground one is rejected.

THE FINDING OF A ‘WORK CAPACITY DECISION’ – GROUND TWO

The Legislation

Section 43 of the 1987 Act provides:
“43   Work capacity decisions by insurers
(1)     The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:
(a)a decision about a worker’s current work capacity,
(b)a decision about what constitutes suitable employment for a worker,
(c)a decision about the amount an injured worker is able to earn in suitable employment,
(d)a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e)a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f)any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2)     The following decisions are not work capacity decisions:
(a)a decision to dispute liability for weekly payments of compensation,
(b)a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3)     The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.”

Section 44A of the 1987 Act provides:
“44A   Work capacity assessment
(1)     An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.
(2)     A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the Workers Compensation Guidelines.
(3)     A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.
(4)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it.
(5)     An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.
(6)     If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.”
Schedule 6, Pt 19H, cl 6 of the 1987 Act provides:
“6 Application of weekly payments amendments to existing claimants
An existing recipient of weekly payments remains entitled to compensation under Division 2 of Part 3 of the 1987 Act as if the weekly payments amendments had not been made, but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division.”
Schedule 6, Pt 19H, cl 1 of the 1987 Act includes the following definitions:
“existing recipient of weekly payments means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.”
“weekly payments amendments means the amendments made by the 2012 amending Act to Division 2 (Weekly compensation by way of income support) of Part 3 of the 1987 Act, other than the amendment made to section 52 (Termination of weekly payments on retiring age) of the 1987 Act.”
Schedule 6, Pt 19H, cl 8 of the 1987 Act provides:
“8   Work capacity assessment of existing recipients of weekly payments
(1)    A work capacity assessment of an existing recipient of weekly payments is to be conducted as provided by this clause for the purposes of facilitating the application of the weekly payments amendments to the worker.
(2)    The insurer who is liable to make weekly payments of compensation to an existing recipient of weekly payments must conduct a work capacity assessment of the worker no later than 12 months (or such longer period as may be prescribed by the regulations) after the commencement of the weekly payments amendments.
(3)    If an existing recipient of weekly payments is a seriously injured worker, the insurer is not to conduct a work capacity assessment of the worker under this clause.
(4)    The Workers Compensation Guidelines may make provision for the staged implementation of the requirement under this clause for a work capacity assessment.
(5)    A work capacity assessment can be conducted before the commencement of Schedule 1 to the 2012 amending Act, as if that Schedule had commenced on the date of assent to the 2012 amending Act. For that purpose the Workers Compensation Guidelines can make provision for work capacity assessments before the commencement of Schedule 1 to the 2012 amending Act.”
Schedule 8, Pt 1, cl 17A of the 2010 Regulation provides:
“17A   Weekly payments amendments to apply where work capacity assessment not conducted
(1)     On and from 1 September 2015, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any period of incapacity occurring on and after that date) to an existing recipient of weekly payments in respect of whom a work capacity assessment has not been conducted before that date.
(2)     For the purposes of the application under this clause of the weekly payments amendments to an existing recipient of weekly payments who is in receipt of weekly payments of compensation immediately before 1 September 2015, the worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.”
Section 32A of the 1987 Act includes the following definitions:
“work capacity assessment means a work capacity assessment under section 44A.”
“work capacity decision – see section 43.”

The Appellant’s Submissions

The document alleged to constitute a ‘work capacity decision’ was the insurer’s letter dated 29 November 2012. At that date, it was submitted, the appellant was an ‘existing recipient of weekly payments’. She had not been “transitioned through operation of the Savings and Transitional Provisions”.
The dispute before the Commission concerned the s 54 notice dated 29 October 2012, which relied on the former s 52A of the 1987 Act.
The terms ‘work capacity decision’ and ‘work capacity assessment’ are separately and distinctly defined in s 32A of the 1987 Act. The document dated 29 November 2012 contained no reference to s 43 of the 1987 Act. It did not describe itself as a ‘work capacity decision’. The respondent did not, in the index to the Reply, describe it as a ‘work capacity decision’. The letter does not contain a decision, a fact observed by the Arbitrator at [51] and [52] of his reasons.
The appellant submits that the Arbitrator “erred in fact and law” in accepting that the letter dated 29 November 2012 was a ‘work capacity decision’. The procedures to make a ‘work capacity decision’ were not complied with. The form of notice did not provide guidance as to the nature of the decision. The appellant submits:
“The Arbitrator failed to give proper consideration to the form and procedural requirements and ultimately the finding of a Work Capacity Decision is inconsistent with the facts.”
The appellant referred to, and relied on the reasoning in, Goncalves and Go.
The appellant submits:
“The document relied upon by the arbitrator made no reference at any point to a work capacity decision and nothing about its existence or its provenance would enable the Arbitrator in this matter to draw an inference that the document constituted, or any matters leading up to it constituted, a work capacity decision.”

The Respondent’s Submissions

The respondent submits that the appellant was attempting to conduct a rehearing, rather than to identify error. Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 at [17]–[31] was referred to.
The respondent said that the Arbitrator “inferred that a work capacity decision had been made prior to the letter dated 29 November 2012” (emphasis in the original). Whilst the Court of Appeal said that such an inference was not available, on the facts before them in Sabanayagam No. 2, it did not say that such a decision “could not be inferred in any case (i.e. without a specific letter indicating a work capacity decision had been made).”
The respondent submits that Sabanayagam No. 2, Goncalves and Go could all be distinguished from the current matter.
The respondent submits that it was an “evaluative exercise to determine whether a work capacity decision had been made in the circumstances”. The Arbitrator’s reasons at [48], [66], [67] and [70]–[73] demonstrated that he properly considered the evidence. The Arbitrator’s conclusion was reasonably open to him. The appeal should be dismissed.

Further Submissions

The Presidential and Court of Appeal decisions, in Sabanayagam No. 1 and Sabanayagam No. 2 respectively, are of clear relevance to the issues in this appeal. The appellant’s Application to Appeal, and the attached submissions, were lodged on 25 May 2016, after the Presidential decision in Sabanayagam No. 1, and before the Court of Appeal decision in Sabanayagam No. 2. The respondent’s Notice of Opposition was lodged on 5 July 2016, after the decision in Sabanayagam No. 2. Thus the respondent’s submissions took account of the Court of Appeal decision, the appellant’s submissions did not.
The Commission issued the following Direction on 5 August 2016:
“The appellant is directed to lodge and serve written submissions in reply in particular addressing, inter alia, the decision of Sabanayagam v St George Bank Limited [2016] NSWCA 145 on or before 4.30 pm on Friday 12 August 2016.”
The appellant lodged submissions in reply on 11 August 2016.
The appellant quoted at length from Sabanayagam No. 2, setting out the passages at [144]–[148] and [153]–[154] of that decision.
The appellant accepted that the “insurer made a work capacity assessment under s 44A on or before 29 November 2012”. The appellant submits that this was not a “final and binding decision by the insurer”, which continued making weekly payments to the appellant until these were discontinued as from 10 December 2012, consistent with the notice previously issued in reliance on s 52A of the 1987 Act. The appellant disputed that the letter dated 29 November 2012 was a “‘a decision’ about a worker’s current work capacity”. It did not attract the protection of the privative clause in s 43(1), or the exclusion of jurisdiction in s 43(3).
The appellant succinctly summarised her position on this issue:
“No decision is discernible from the insurer’s letter of 29 November 2012 but rather it explicitly identifies itself as an assessment rather than a final and determinative decision with respect to rights and entitlements to payments of weekly compensation.”
The appellant’s submissions in reply also raised a further issue. The appellant submits, in the alternative, that even if the respondent had made a ‘work capacity decision’ on or before 29 November 2012, the Arbitrator erred in determining that he was “prevented from determining any dispute about that decision, including the claim for weekly compensation” (his reasons at [73]).
The appellant submits that, if the correspondence of 29 November 2012 “was ‘a decision’ about a worker’s current work capacity … there was still room within which s 43(1) and s 43(3) could operate and the arbitrator make a determination”. The appellant submits:
“If the assessment made under s 44A was indeed a decision rather than an assessment, then s 43(3) did not prevent the arbitrator from making an assessment of weekly compensation entitlements that was consistent with the decision of the insurer.”
The insurer was paying weekly compensation, as at 10 December 2012 (when the payments ceased), at the maximum statutory rate prescribed under s 37 of the 1987 Act in its previous form. If the s 52A issue was determined in the appellant’s favour, then pursuant to s 43(3) the Arbitrator would have to reinstate payments “at the rate the insurer had clearly decided was appropriate having made the assessment detailed in the correspondence of 29 November 2012”.
As the further issue had not (understandably) been addressed by the respondent, the following Direction was issued to the parties on 17 August 2016:
“The submissions lodged by the appellant in reply, on 11 August 2016, appear to raise a further issue, not raised in the Application to Appeal Against Decision of Arbitrator. That is whether, if the Arbitrator’s decision regarding the existence of a ‘work capacity decision’ was correct, there was error in his conclusion that this deprived him of jurisdiction to determine the pleaded claim for weekly payments of compensation.
The respondent is given leave to lodge, on or prior to 4.30 pm on 24 August 2016, further submissions:
1.       dealing with whether the appellant should be granted leave to raise the further issue. If not, the respondent should include short submissions setting out the basis of its opposition;
2.       addressing the further issue raised in the appellant’s submissions in reply, and
3.       addressing the orders that should be made, in the event that the appellant succeeds on the further issue.”
The respondent lodged further submissions, pursuant to the leave in this Direction, on 18 August 2016. Those submissions read:
“1.     The Respondent says that the Appellant ought to have raised the further issue (referred to in the Direction) at the hearing before Arbitrator Richard Perrignon.
2.      It is not an error for an arbitrator not to deal with an issue that was never raised.
3.      The Appellant elected to run her case on the basis that there was no WCD.”

The Decisions in Sabanayagam No. 1 and Sabanayagam No. 2

Ms Sabanayagam suffered injury in 2006, and was paid weekly compensation on a voluntary basis. It was common ground that, from 1 January 2013, Ms Sabanayagam’s weekly entitlement was subject to the weekly payments amendments introduced by the 2012 Amending Act.
On 25 November 2013, and in August 2014, the employer gave her notice of work capacity decisions, the effect of which was to reduce her weekly entitlement to nil. In each instance, the decisions were followed by decisions on internal review, the effect of which was to find that Ms Sabanayagam had no current work capacity, and was entitled to have her weekly payments continue.
On 20 March 2015 the employer issued a s 74 notice, denying liability on the basis that Ms Sabanayagam was “fit for pre-injury duties”. It further stated that the effects of the work injury had “now resolved”, and the effects of the injury were “no longer causing … any incapacity for work”.
Before the Deputy President, the employer argued that the s 74 notice “fundamentally related to [Ms Sabanayagam’s] capacity and consequently was a decision falling within the meaning of s 43(1)(f) of the 1987 Act”. The employer submitted that the Commission did not have jurisdiction to determine the dispute, or make a decision inconsistent with what was a ‘work capacity decision’.
The Deputy President accepted a concession that the s 74 notice, a decision to dispute liability, could not be found to be a ‘work capacity decision’. The Deputy President concluded that a decision to discontinue weekly payments was a ‘work capacity decision’, this being a decision which was made before service of the s 74 notice. The Commission could not make a decision inconsistent with it (the Deputy President’s reasons at [61]). The Deputy President’s finding was that “a relevant work capacity decision was, by implication from the facts, made by the insurer in 2015” (the Deputy President’s reasons at [85]).
The Deputy President’s reasons in Sabanayagam No. 1 were summarised in Sabanayagam No. 2 at [88]–[92].
In Sabanayagam No. 2 Sackville AJA (Beazley P agreeing) at [118]–[120] said (excluding footnotes):
“118. … If the Deputy President intended to find that the Insurer made a work capacity decision prior to 20 March 2015, that finding was in error. There was simply no evidence to support a finding that the Insurer made a decision to terminate the Worker’s continued entitlement to weekly compensation payments other than the decision made by Ms Boyd on the Insurer’s behalf.
119. The making of findings and the drawing of inferences in the absence of any evidence to support them is an error of law. Thus to the extent that the Deputy President found that the Insurer had made a work capacity decision prior to 20 March 2015 (other than those made in 2013 and 2014), his Honour erred in point of law.
120. The crucial question on the appeal is therefore whether the decision made by the Insurer on 20 March 2015, as communicated in the Notice, was a work capacity decision. If not, the Notice of Contention cannot succeed.”
His Honour then referred to s 105 of the 1998 Act, and considered the Commission’s jurisdiction. At [127] his Honour said “[t]he controversy between the parties arose under the WC Act and, subject to the operation of s 43(1) and (3) of the WC Act, was within the jurisdiction of the Commission to determine.” His Honour at [129] said:
“The grant of exclusive jurisdiction to the Commission by s 105(1) of the WIM Act is qualified by the privative clause in s 43(1) and the express exclusion from the Commission’s jurisdiction effected by s 43(3) of the WC Act. To understand the operation of these provisions, reference must be made to other provisions of Div 2 of Pt 3 of the WC Act.”
At [136] his Honour referred to the decision in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198 at [55], where the Court of Appeal “pointed out that both limbs of s 43(3) assume that a work capacity decision has been made”.
At [142] his Honour said:
“Division 2 of Pt 3 of the WC Act does not, however, confer a general or comprehensive power on insurers to decide whether workers are entitled to weekly compensation or to a continuation of weekly compensation after the expiry of the second entitlement period. They are not given power, for example, to decide that a worker no longer has a ‘total or partial incapacity’ and thus no longer satisfies the requirements of s 33 of the WC Act. Nor are insurers given power to decide that a worker is no longer suffering from an injury arising out of or in the course of his or her employment and thus no longer satisfies s 4 of the WC Act.”
At [148] Sackville AJA concluded that the decision made on 20 March 2013 “was not within s 43(1)(a) of the WC Act”.
His Honour then considered whether the decision fell within the arguably more general provision of s 43(1)(f) of the 1987 Act. His Honour said that s 43(1)(f) “must be construed in context”. At [151] his Honour said:
“It follows that the expression ‘any other decision of an insurer that affects a worker’s entitlement to weekly compensation’ in s 43(1)(f) is a reference to any other decision affecting such an entitlement that Div 2 empowers an insurer to make. Section 43(1)(f) cannot convert a purported decision by an insurer that it has plainly no authority to make under Div 2 of Pt 3 into a decision that is subject to the privative clause or to s 43(3).”
His Honour said that the insurer’s decision made on 20 March 2015 “was not a work capacity decision within s 43(1)” of the 1987 Act (at [155]).

Discussion

The challenge to the Commission’s jurisdiction rests on the proposition that the insurer made a ‘work capacity decision’ within the meaning of s 43 of the 1987 Act. Section 43(3) applies to a ‘work capacity decision’, not a ‘work capacity assessment’.
The insurer’s letter dated 29 November 2012 did not purport to constitute a ‘work capacity decision’, it stated at the outset “we have made a work capacity assessment”. As the Arbitrator correctly observed at [51] of his reasons, the letter did not specify any consequences of the assessment, it did not purport to give notice that weekly compensation was to be reduced or discontinued. The Arbitrator referred to the insurer’s “failure to observe the many procedural requirements” contained in Pt 5 of the WorkCover Work Capacity Guidelines. He said at [52]:
“I draw the inference that the insurer intended only to make a work capacity assessment, and did not intend to make a work capacity decision.”
The Arbitrator referred to the respondent as submitting that it made two decisions on 29 November 2012, these being firstly that the appellant had a current work capacity, and secondly what it was (full-time work as a call centre operator, receptionist or sales assistant). He said that each of those, in the respondent’s submission, fell within s 43(1)(a) and (b) of the 1987 Act.
The Arbitrator distinguished the facts from those in Sabanayagam No. 1. The letter dated 29 November 2012 did not assert that the appellant was fit for her pre-injury employment. It did not constitute a decision to discontinue weekly payments, which were already to be discontinued on the basis of the letter dated 29 October 2012 (reasons at [64]–[65]). The work of a hairdresser (the appellant’s pre-injury employment) was excluded from the list of suitable employments. The Arbitrator said that he inferred a decision was made by the insurer that the appellant was not capable of her pre-injury employment.

The Arbitrator then made the following finding at [67] of his reasons:
“It follows that the insurer had decided, prior to giving the notice of 29 November 2012, that the worker had a present inability as a result of her injury such that she was not able to return to her pre-injury employment as a hairdresser, but that she was capable of suitable employment, that being defined in the notice as full-time employment as a call centre operator, receptionist or sales assistant. Unlike the situation in Sabanayagam, the decision notified on 29 November 2012 was a decision about ‘current work capacity’ as defined by section 32A, and falls within the ambit of section 43(1)(a).” (emphasis added)
The Arbitrator at [70] said that he was “satisfied that the insurer did not intend to make a work capacity decision”. However, characterisation of the decision:
“… is not determined by the subjective intent of the decision maker, though that may be a relevant factor, but objectively having regard to the relevant statutory provisions and all the circumstances of the case.”
The question the Arbitrator posed for himself on this issue (at [15] of his reasons) was:
“Whether the Commission is deprived of jurisdiction to determine the claim for weekly compensation by operation of section 43?”
The Arbitrator answered this question at [74] of his reasons:
“The insurer’s letter of 29 November 2012 evidences a work capacity decision made by the insurer prior to the issue of that letter. The worker’s claim for weekly compensation constitutes a dispute about that decision, and section 43 precludes the Commission from making any determination in respect of it, or from making any decision inconsistent with the decision.” (emphasis added)
The text of the letter dated 29 November 2012 said, in its entirety:
“Dear Ms. CHRISTINE D’ER,
Pursuant to Sections 32A and 44A and Part 19H cl 8(5) of the Schedule 6 of the Workers Compensation Act 1987 and the WorkCover Guidelines, we have made a Work Capacity Assessment as follows:
1)      You have a current work capacity to work in suitable employment.
2)      The employment for which you are currently suited is full time work as a call centre operator, receptionist or sales assistant.
3)      This is based on the following:-
a)Dr Sadauskas, certifies you as fit for suitable employment without restriction on hours of work, provided that you do not use your right hand repetitively or drive for long distances.
b)The Konekt vocational report states that you are fit for full time work as a call centre operator, receptionist or sales assistant.
Please call me on 02 xxxx xxxx if you have any questions.
Thank you,
Leesa
                  Claims advisor
                  GIO General Ltd – Agent for the NSW WorkCover Scheme
                  Direct phone: 02 xxxx xxxx”

The Arbitrator’s decision was delivered after Sabanayagam No. 1, but prior to the Court of Appeal decision in Sabanayagam No. 2. In Sabanayagam No. 1, the Deputy President dealt with the question of whether “it may be inferred that a work capacity decision had been made before service of the s 74 notice” (at [58]). The Deputy President, having found that the relevant notice was not a ‘work capacity decision’ (at [55]–[57]), concluded that “the decision to discontinue payments, as earlier found, is a work capacity decision” (at [61]).
The analysis of the Arbitrator in the current matter was similar. The Arbitrator specifically found that the ‘work capacity decision’ was made prior to giving notice on 29 November 2012. He referred to the decision being “evidenced by the letter”. He did not find that the letter constituted a ‘work capacity decision’.
As in Sabanayagam No. 1, the Arbitrator inferred aspects of the decision. The letter did not specifically deal with the question of whether the appellant had a “present inability” arising from an injury such that she was “not able to return to … her pre-injury employment”. This is a necessary part of the definition of ‘current work capacity’ in s 32A of the 1987 Act. The Arbitrator inferred “that the insurer had made a decision to that effect”, based on the absence of the work of a hairdresser from the listed work capacities, for which the appellant was said to be fit, in the letter (his reasons at [66]).
The letter dated 29 November 2012 was unsigned. It had the first name of someone identified as a “Claims Advisor” at its foot. It did not identify who made the decision, or when.
The letter described the decision as being made pursuant to ss 32A, 44A and Sch 6, Pt 19H, cl 8(5) of the 1987 Act.
Section 32A of the 1987 Act contains a number of definitions. These include ‘work capacity assessment’ and ‘work capacity decision’. Section 44A of the 1987 Act deals with the conduct by the insurer of a ‘work capacity assessment’. Schedule 6, Pt 19H, cl 8 specifically deals with the ‘work capacity assessment’ of existing recipients of weekly payments (which the appellant was). Subclause 8(5) provided for the conducting of such assessments before the commencement of Sch 1 (which contained the ‘weekly payments amendments’). The purpose of this reference in the letter is unclear; the ‘weekly payments amendments’, including ss 32A and 44A, commenced from 1 October 2012, before the date of the letter.
Work Capacity Guidelines, issued by the former WorkCover Authority of New South Wales (they are now described as State Insurance Regulatory Authority Guidelines) are part of the ‘WorkCover Guidelines for Claiming Compensation Benefits’. The Work Capacity Guidelines which had application as at 29 November 2012 were those dated 27 September 2012 (the relevant Guidelines).
In Sabanayagam No. 2 Sackville AJA at [118] said:
“If the Deputy President intended to find that the Insurer made a work capacity decision prior to 20 March 2015, that finding was in error. There was simply no evidence to support a finding that the Insurer made a decision to terminate the Worker’s continued entitlement to weekly compensation payments other than the decision made by Ms Boyd on the Insurer’s behalf.”
His Honour then moved at [120] to what he described as “the crucial question on the appeal”, being “whether the decision made by the Insurer on 20 March 2015, as communicated in the Notice, was a work capacity decision”.
In the current matter, as in Sabanayagam No. 2, the only evidence of any relevant decision is to be found in the notice. Similar concerns regarding fact finding are raised in the current matter. The Arbitrator’s finding was that a ‘work capacity decision’ was made, at some time prior to the letter dated 29 November 2012. There was no evidence going to the making of any such decision. The Arbitrator erred in finding the existence of such a decision, in the absence of evidence: Sabanayagam No. 2 at [118], Bruce v Cole (1998) 45 NSWLR 163 at 187G–188B. The evidence did not support a finding that a ‘work capacity decision’ was made by the insurer, “on or shortly before 29 November 2012” (Certificate of Determination at [2], the Arbitrator’s reasons at [67]). It follows that ground two succeeds and the appellant’s appeal is upheld.
More specifically, it was necessary, if the decision was to be one “about a worker’s current work capacity” (s 43(1)(a) of the 1987 Act), that the decision be based on the premise that the appellant had “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment” (the definition in s 32A of the 1987 Act). The letter dated 29 November 2012 had no reference to such a finding or premise. The Arbitrator inferred that the decision included a finding to that effect. It was said that the letter dated 29 November 2012 “implies that she was not capable of her pre-injury employment”, as “hairdresser” was not on the list of employments of which she was said to be capable (the reasons at [66]).
In the absence of any evidence going to what (if anything) was decided, and by who, prior to the letter dated 29 November 2012, it is “a mere matter of conjecture” whether any decision was based on the premise that the appellant was not able to return to her pre-injury employment. The circumstances appearing in the evidence do not give rise to a reasonable and definite inference that any alleged decision proceeded on this basis: Luxton v Vines[1952] HCA 19; 85 CLR 352, per Dixon, Fullagar and Kitto JJ at [8]. Dixon CJ in Jones v Dunkel [1959] HCA 8; 101 CLR 298, after referring to Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at [2] said:
“But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
Given the absence of evidence going to the existence of a decision, prior to the letter dated 29 November 2012, the inference drawn by the Arbitrator at [66] of his reasons was not, in my view, available (Sabanayagam No. 2 at [119]). It follows that, even if the evidence had otherwise supported a finding that a ‘work capacity decision’ was made prior to that letter, it was not established that the decision in the notice was a decision about the appellant’s current work capacity.
The respondent did not, in its submissions on this appeal, seek to defend the Arbitrator’s conclusion on the jurisdictional issue, on the alternative basis that the letter dated 29 November 2012 itself constituted a ‘work capacity decision’. In this regard, the letter dated 29 November 2012 did not purport to constitute a ‘work capacity decision’, and it did not comply with the requirements in Pt 5.4.2 of the relevant Work Capacity Guidelines at the time of issue of the letter (see the discussion below).
The appellant accepted that the insurer made a ‘work capacity assessment’, but disputed that it was a ‘final and binding’ decision within the meaning of s 43 of the 1987 Act. It described its subject matter as a ‘work capacity assessment’, referring to the legislation in that regard. It did not affect, or purport to affect, the appellant’s entitlement to weekly compensation payments. Such payments ultimately ceased as at 10 December 2012, consistent with the earlier notice dated 29 October 2012, which invoked s 52A of the 1987 Act.
Section 44A(2) of the 1987 Act provides that a ‘work capacity assessment’ is to be “conducted in accordance with the Work Capacity Guidelines”.
Part 4 of the relevant Guidelines provided for the conducting of a ‘work capacity assessment’. Such an assessment was “a review of the worker’s functional, vocational and medical status”. It was to “help to inform decisions by the insurer” (emphasis added). An assessment could be conducted “at any stage throughout the life of a claim”. It was to consider “all available information”. The worker had an obligation “to attend and participate in any evaluation required as part of the work capacity assessment”.
Part 5 of the relevant Guidelines dealt with the making of a ‘work capacity decision’. The Guideline stated:
“A work capacity decision is a discrete decision that may be made at any point in
time and can be about any one of the factors described in section 43(1), such as
the worker’s capacity to earn in suitable employment. This is different to a work
capacity assessment which is a review process that may or may not lead to the
making of a work capacity decision or another type of decision regarding a claim.
Work capacity decisions should be made in line with the Best Practice Decision-
Making Guide.” (emphasis added)
The relevant Guidelines, regarding ‘work capacity decisions’, included ‘Fair notice provisions’ (at Pt 5.2) and notification provisions (at Pt 5.4). Those Guidelines at Pt 5.4.2 provided:
“5.4.2. Requirements of a Work Capacity Decision Notice
The Work Capacity Decision Notice must:
·        reference the relevant legislation
·        explain the relevant entitlement periods
·        state the decision and give brief reasons for making the decision
·        outline the evidence considered in making the decision, noting the author, the date and any key information. All evidence considered should be referred to, regardless of whether or not it supports the decision.
·        clearly explain the line of reasoning for the decision
·        state the impact of the decision on the worker in terms of their entitlement to weekly payments, entitlement to medical and related treatment expenses and return to work obligations
·        advise when the decision will take effect
·        detail any support, such as job seeking support, which will continue to be provided during the notice period
·        advise that any documents or information that have not already been provided to the worker can be provided to the worker on request to the insurer
·        advise of the process available for requesting review of the decision and how to access the required form, Application for review of a work capacity decision by insurer.”
It is readily apparent that the letter dated 29 November 2012 did not comply with the requirements in Pt 5.4.2 of the Guidelines. Failures on the part of an insurer, in complying with relevant Work Capacity Guidelines, going to an alleged ‘work capacity decision’, were described in Sabanayagam No. 2 as “irregularities” (at [98]). Sackville AJA at [145] of that decision described a failure by the insurer to comply with Work Capacity Guidelines as “indications that the employer was not purporting to make a decision about the Worker’s current work capacity”.
Although not conclusive, the insurer’s failure to comply with relevant Guidelines at the time, and its failure to describe the letter dated 29 November 2012 as a work capacity decision notice, are consistent with a lack of intention to make a work capacity decision. This tends to support the conclusion reached above in respect of ground two.

THE FURTHER ISSUE RAISED BY THE APPELLANT

The further issue raised is described at [114]–[117] above. In short, the appellant sought to argue that, even if the respondent had made a ‘work capacity decision’, ss 43(1) and (3) of the 1987 Act did not prevent the Arbitrator determining the s 52A issue. It was submitted that, if the appellant succeeded on the argument based on s 52A, the Commission could order reinstatement of weekly compensation at the rate at which it was paid before the s 52A notice. That rate would be consistent, it was submitted, with the decision the respondent made, regarding the appropriate weekly entitlement, in the light of its letter dated 29 November 2012.
The respondent’s short submissions on the topic are set out at [118] above. Although it should have been expressly stated, I infer, from the respondent’s submissions, that it opposes leave being granted to the appellant to rely on the additional issue. The respondent’s submissions on the issue did not refer to authority.
The second of the submissions I take to be a reference to the decision in Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, where McColl JA at [30] said:
“More importantly, a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited[2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon[2010] HCA 14 at [88].”
The first and third of the submissions appear to refer to Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 48, in which the High Court at [7] said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The principle was recently applied in Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93, where Simpson JA (Sackville AJA agreeing) at [98] said it was uncontentious that “parties are bound by the conduct of their cases at trial, and that an appellate court will not ordinarily allow a new case to be made on appeal”.
The respondent’s position was that this issue had not been run at first instance, where the appellant simply submitted that a ‘work capacity decision’ had not been made.
The further issue was not raised by the appellant in her oral or written submissions before the Arbitrator. It was not raised by the appellant in her submissions attached to the Application to Appeal. It was first raised in the appellant’s submissions in reply. It was not accompanied by any application for leave to amend the grounds of appeal, or to raise a further issue. There were no submissions going to whether leave should be granted, and on what basis.
The practice of raising new issues in submissions in reply has been described by Roche DP as “improper”: NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [30], Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 at [14]. The Deputy President referred to Bale v Mills [2011] NSWCA 226 at [57].
The appellant has not demonstrated that it is in the interests of justice that she be granted leave to amend, to raise the further issue, and indeed no actual application to amend the grounds of appeal is made. The appellant has not given any explanation of why the further issue was not raised before the Arbitrator, or in the grounds of appeal. I decline to grant leave to the appellant to rely on the further issue.

OTHER MATTERS: JURISDICTION AND THE TRANSITIONAL PROVISIONS

The conclusion I have reached in respect of ground two is sufficient to dispose of the appeal. It will be necessary that the matter be remitted for re-determination by another arbitrator.
The further issue which the appellant sought to raise went to the operation of s 43 of the 1987 Act, and the extent to which a work capacity decision (had one been made) would affect the ability of the Commission to deal with the weekly payments claim. The respondent was given an opportunity to address that issue. It confined its opposition to essentially procedural matters.
The parties conducted the matter on the basis that the appellant was an ‘existing recipient of weekly payments’, whose weekly entitlements remained under the previous provisions, until she was transitioned effective 1 September 2015, pursuant to Sch 8, Pt 1, cl 17A of the 2010 Regulation. The ‘Claim Details’ in Pt 5 of the Application, and in the Reply, were pleaded on the basis the weekly claim was brought pursuant to the previous provisions. The weekly claim was amended to be presented as a closed period. Counsel agreed that the period would have to close at 31 August 2015, “when the transitional provisions … deem there to have been a work capacity decision effective 1 September.” (21.12.15, T6.8–18).
The appellant’s counsel addressed on incapacity on the basis of Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; 25 NSWCCR 206 (Wilson), a decision dealing with the previous provisions, which has only limited application to matters under the ‘weekly payments amendments’ introduced by the 2012 Amending Act (24.11.15, T92.5–20, 96.14–16, 21.12.15, T85.16–25). The respondent’s counsel, submitting on the weekly entitlement if his s 52A notice failed, referred to s 40 of the 1987 Act in its previous form, and the test in Mitchell v Central West Area Health Services (1997) 14 NSWCCR 526 (21.12.15, 5.14–6.4, 68.26–33).
The ‘weekly payments amendments’ were the amendments made by the 2012 Amending Act to Pt 3, Div 2 of the 1987 Act (which governs weekly compensation), ss 32A to 58.

Sections of the 1987 Act, which were otherwise repealed by the 2012 Amending Act, continued to apply to an existing recipient of weekly payments, pending such a worker being transitioned. These included ss 43A, 52A and 55: Jackson v Cement Australia (Kandos) Ltd [2012] NSWWCCPD 67 (Jackson) at [17]), Hunter New England Local Health District v James [2014] NSWWCCPD 38 at [1].
The appellant was an existing recipient of weekly payments as at the date of the notice pursuant to s 52A. If it was otherwise, s 52A could not have applied to her situation.
The parties’ counsel, at the conclusion of the arbitration hearing, put on record what the issues were (21.12.15, T91.8–95.30). Relevant, to whether one of the ‘grounds for discontinuation’ in the s 52A notice was made out, was whether the appellant was partially incapacitated. There was an associated issue regarding whether this question was affected by any estoppel. There was an issue regarding whether the appellant was looking for suitable employment, up to and including the date of the notice.
Roche DP in J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89 at [89] said:
“For the purposes of section 52A, the ‘relevant time’ is ‘the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given’. That is not a fixed point in time, but covers a period leading up to the date on which the notice is served (Hughston v Hughston & Sons Pty Ltd [1999] NSWCC 35; (1999) 18 NSWCCR 312 at 321).”
For reasons given above, the Commission has exclusive jurisdiction, conferred by s 105(1) of the 1998 Act, to deal with the dispute between the parties, going to whether a ‘ground for discontinuation’ was made out, such that the respondent was entitled to rely on the s 52A notice it issued dated 29 October 2012. The respondent accepted that it carried the onus (21.12.15, T64.28–34): Jackson at [93].
Quite clearly, the appellant’s entitlement to weekly compensation was to be determined “as if the weekly payments amendments had not been made”. The respondent’s letter dated 29 November 2012, alleged by it to be a ‘work capacity decision’, post-dated the s 52A notice by one month.
The matters about which an insurer can make a ‘work capacity decision’ are described in s 43 of the 1987 Act. These are decisions dealing with concepts under the ‘weekly payments amendments’, for example ‘current work capacity’ and ‘suitable employment’. These terms are defined in s 32A of the 1987 Act. The definitions do not correlate with what, on a superficial reading, may appear to be roughly equivalent provisions in the legislation, prior to commencement of the ‘weekly payments amendments’.
In Mid North Coast Local Health District v de Boer [2013] NSWWCCPD 41 (de Boer) Roche DP dealt with the concepts of ‘total incapacity’ (in the legislation in its previous form) and ‘no current work capacity’ (as defined in s 32A, inserted as part of the ‘weekly payments amendments’). The Deputy President referred to the test for ‘total incapacity’ in decisions of the Court of Appeal such as Wilson. The test was described in Wilson at 213 as a “practical exercise”, which had “regard to the realities of the labour market in which [the worker] is to be engaged”.
The Deputy President in de Boer referred to the terms ‘no current work capacity’ and ‘suitable employment’ as defined in s 32A of the 1987 Act. At [143] he said:
“The Arbitrator did not refer to either of the above definitions, but merely treated the finding of total incapacity as if it was synonymous with the definition of ‘no current work capacity’. As the above definitions make clear, the two concepts are quite different.”
The definition of ‘suitable employment’ in s 32A specifically provides that such employment is to be identified:
“(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Prior to commencement of the ‘weekly payments amendments’, ‘suitable employment’ was defined in s 43A of the 1987 Act. That provision specifically provided that, in identifying suitable employment, regard should be had to the nature of the worker’s pre-injury employment and the worker’s place of residence. Established authority said that partial incapacity was to be determined “having regard to the realities of the labour market in which the employee was working or might reasonably be expected to work”: Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 at [9]. See also Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 71 NSWLR 593.
Authorities, applicable prior to commencement of the ‘weekly payments amendments’, established that a worker could have a compensable partial incapacity, notwithstanding that the worker was fit to carry out his or her pre-injury work: Holden v Toll Chadwick Transport (1987) 8 NSWLR 222 at 228B–D. By contrast, the definitions of both ‘current work capacity’ and ‘no current work capacity’ in s 32A, require that a worker be “not able to return to his or her pre-injury employment” to fall within them.
Thus, the identification of ‘suitable employment’, applying the definition in s 32A, specifically ignores various significant matters which were previously considered, when applying the former s 43A of the 1987 Act, and relevant authorities.
It flows from the above, that an assessment of whether a worker is totally incapacitated is a quite different exercise to assessing whether a worker has ‘no current work capacity’, within the meaning in s 32A. Similarly, whether a worker has ‘current work capacity’ (which depends on an ability to return to work in ‘suitable employment’ as defined in s 32A) is a different exercise to determining whether a worker is partially incapacitated.
An insurer can “exercise the powers conferred on it by Div 2 of Pt 3 of the WC Act”, in making decisions relevant to weekly entitlements (Sabanayagam No. 2 at [144]). It cannot “perform decision making functions that the legislation does not entrust to it” (Sabanayagam No. 2 at [153]).
The issues in the current matter, central to determining whether the respondent could discharge its onus to establish that it was entitled to rely on its s 52A notice, were whether the appellant was partially incapacitated, and if so, whether she was “seeking suitable employment” within the meaning of the former s 43A of the 1987 Act, at ‘the relevant time’. Decision making functions on these issues were not entrusted to the insurer pursuant to Pt 3, Div 2 of the 1987 Act, as amended by the 2012 Amending Act.
The insurer’s letter, dated 29 November 2012, indicated that the assessment which it contained was pursuant to ss 32A and 44A, and Sch 6, Pt 19H, cl 8(5), of the 1987 Act. Its statement that the appellant had a “current work capacity to work in suitable employment” was a reference to the definitions in s 32A. It could not validly have been a reference to concepts such as partial and total incapacity, a decision on such matters would have been outside the powers conferred on the insurer. Similarly, its reference to the employment for which the appellant was “currently suited” could only, validly, have been a reference to ‘suitable employment’ on the basis of the definition in s 32A. A purported finding on what was ‘suitable employment’ pursuant to the former s 43A of the 1987 Act would have involved decision making, by the insurer, “that the legislation does not entrust to it”.
Section 43(3) of the 1987 Act restricts the jurisdiction of the Commission, otherwise conferred pursuant to s 105(1) of the 1998 Act, in two specific ways. It cannot “determine any dispute about a work capacity decision”. It is not to make a decision “that is inconsistent with a work capacity decision”.
Assume that, contrary to the finding going to ground two in this appeal, the letter dated 29 November 2012 evidenced a ‘work capacity decision’. The dispute in the current matter involved whether the respondent could discharge its onus, to establish that the necessary elements in the former s 52A(1)(a) of the 1987 Act were present. This was not a “dispute about a work capacity decision”.
No part of the relevant decision making involved determining a “dispute about a work capacity decision”. At the most, if the relevant letter evidenced a ‘work capacity decision’, the ‘decisions’ in the letter went to concepts of ‘current work capacity’ and ‘suitable employment’, within the meaning of s 32A of the 1987 Act. These were concepts different to those which needed to be considered in deciding the s 52A dispute. Any fact finding involved, in determining the issues pursuant to s 52A, could not have been inconsistent with any such work capacity decision. The concepts to be determined were different. Similar considerations would operate if the weekly entitlement was being assessed pursuant to the previous form of s 37, or the previous s 40, of the 1987 Act.
It follows that, even if the letter dated 29 November 2012 was taken to have evidenced a ‘work capacity decision’ (the Arbitrator’s finding, and the position the respondent sought to defend on this appeal), it is difficult to see any valid basis on which s 43(3) of the 1987 Act prevents determination by the Commission of the dispute before it.

ORDERS DISPOSING OF THIS APPEAL

Of the various findings and orders in the Certificate of Determination, only those numbered [2] and [3] were the subject of challenge in this appeal. The findings and orders at [1], [4], [5] and [6] are confirmed.
Consistent with the upholding of ground two of the appeal, paragraphs [2] and [3] of the Certificate of Determination are set aside.
The appellant, in his primary submissions on this appeal, specifically requested that, subject to [2] and [3] of the Certificate of Determination being set aside, the matter be remitted to another Arbitrator for re-determination. This was on the basis that findings had not been made on the substantive matters raised, relevant to the dispute about weekly payments.
The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant’s weekly entitlement from 10 December 2012 to 31 August 2015.

DECISION

The orders in paragraphs [1], [4], [5] and [6] of the Certificate of Determination dated 28 April 2016 are confirmed.
The orders in paragraphs [2] and [3] of the Certificate of Determination dated 28 April 2016 are revoked.
The matter is remitted to another Arbitrator for re-determination, on the issue of the appellant’s weekly entitlement from 10 December 2012 to 31 August 2015.

Michael Snell
Deputy President

31 August 2016