Diaz v Sydney International Container Terminals Pty Ltd
[2022] NSWPIC 155
•12 April 2022
CERTIFICATE OF DETERMINATION OF MEMBER CITATION:
Diaz v Sydney International Container Terminals Pty Ltd [2022] NSWPIC 155
APPLICANT: Leyre Diaz RESPONDENT: Sydney International Container Terminals Pty Ltd MEMBER: Jane Peacock DATE OF DECISION: 12 April 2022 CATCHWORDS: WORKERS COMPENSATION - Psychological injury; claim for compensation for ongoing weekly benefits and medical expenses; liability for injury disputed; respondent did not press liability dispute and resolved sections 36 and 37 and section 60 aspect of the claim of the Workers Compensation Act 1987 (the 1987 Act); applicant pressed section 38 claim; no dispute on evidence that applicant had no current work capacity and that it was likely to continue indefinitely that she would have no current work capacity; respondent disputed that Commission could make an order under section 38(2) of the1987 Act in the applicant’s favour because she had not been assessed by the insurer as having no current work capacity which was likely to continue indefinitely; Sabanayagam v St George Bank Ltd, Oliver Roberts v University of Sydney, Dickson v Zurich Financial Services Australia Limited (Dickson), Chea v Woolworths Limited considered; Held- that the Commission had jurisdiction to make an order under section 38 of the 1987 Act in favour of the applicant. Award for the applicant. DETERMINATIONS MADE: 1. The applicant has leave by consent to amend the Application to Resolve a Dispute as follows:
(a) to rely on a deemed date of injury of 14 March 2019;
(b) to claim weekly compensation from 30 May 2019, and
(c) to claim compensation for section 60 expenses.
2. The proceedings in respect of the claim for weekly compensation under the Workers Compensation Act 1987 (the 1987 Act) from 30 May 2019 to 15 September 2021 be discontinued.
3. The proceedings in respect of the claim for compensation for section 60 expenses be discontinued.
4. The respondent pay the applicant weekly compensation under section 38 of the 1987 Act from 16 September 2021 to date and continuing in accordance with the provisions of the Act.
NOTIONS MADE:
1. The parties agree that payments of the following will be made on a voluntary basis:
(a) the respondent pay the applicant weekly compensation from 30 May 2019 to 13 June 2019 at the rate of $2,169.72 per week under section 36 of the 1987 Act;
(b) the respondent pay the applicant weekly compensation from 14 June 2019 to 19 March 2020 at the rate of $1,827.14 per week under section 37 of the 1987 Act;
(c) the respondent pay the applicant weekly compensation from 20 March 2020 to 15 September 2021 at the rate of $1,117.70 per week, and
(d) the respondent pay the applicant’s reasonably necessary section 60 expenses on production of accounts and/or receipts and/or Medicare Notice of Charge.
STATEMENT OF REASONS
BACKGROUND
1.By Application to Resolve a Dispute (Application), as amended, filed by the applicant,
Ms Leyre Diaz (Ms Diaz) seeks weekly compensation and compensation for medical expenses as a result of psychological injury deemed to have occurred on 14 March 2019.2.The respondent is Sydney International Container Terminals Pty Ltd. The respondent was insured for the purposes of workers compensation.
ISSUES FOR DETERMINATION
3.The proceedings were brought before the Personal Injury Commission (Commission) because the respondent disputed liability for injury and on this basis refused, after the provisional liability period, to pay ongoing weekly compensation or compensation for medical expenses.
4.At the conciliation/arbitration hearing the dispute about injury resolved and the parties agreed that the claim for weekly compensation under sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), and claim for section 60 expenses would be discontinued and the following notations would be made representing their agreement that payments would be made on a voluntary basis:
(a) the respondent pay the applicant weekly compensation from 30 May 2019 to 13 June 2019 at the rate of $2,169.72 per week under section 36 of the 1987 Act;
(b) the respondent pay the applicant weekly compensation from 14 June 2019 to 19 March 2020 at the rate of $1,827.14 per week under section 37 of the 1987 Act;
(c) the respondent pay the applicant weekly compensation from 20 March 2020 to 15 September 2021 at the rate of $1,117.70 per week, and
(d) the respondent pay the applicant’s reasonably necessary section 60 expenses on production of accounts and/or receipts and/or Medicare Notice of Charge.
5.Ms Diaz maintained that she sought ongoing weekly compensation in her Application and that she is entitled to weekly compensation after the expiry of the second entitlement period under section 38(2) of the 1987 Act. It is agreed that the second entitlement period expires on 15 September 2021.
6.The respondent disputed that the Commission had jurisdiction to determine Ms Diaz’s entitlements under section 38(2) in circumstances where the insurer has not made an assessment that Ms Diaz has no current capacity for work and is likely to continue to have no current capacity for work.
7.There is no dispute about pre-injury average weekly earnings (PIAWE). There is no dispute about the quantum of the award of weekly compensation under section 38(2) in the event that it is determined the Commission has jurisdiction. This amount is agreed at $1,117.70. It is agreed that the third entitlement period commences on 16 September 2021.
8.There is also no dispute that on the evidence before the Commission the finding is open that Ms Diaz has no current work capacity and that she is likely to continue indefinitely to have no current work capacity.
9.The parties agree that the following issue remains in dispute:
(a) whether the Commission has jurisdiction to determine that Ms Diaz is entitled to weekly compensation in the third entitlement period under section 38(2) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
10.A conciliation/arbitration was held on 12 November 2021. This was adjourned by consent and at the request of Ms Diaz and with the approval of the Head of the Division so that
Ms Diaz could clarify her entitlements under her income protection policy.11.A further conciliation/arbitration was held on 28 January 2022. As set out above the parties were able to come to an agreed resolution of the issues in dispute in respect of liability for injury, and the payment of weekly compensation under sections 36 and 37 of the 1987 Act and the payment of compensation for section 60 expenses.
12.Ms Diaz maintained an application under section 38(2) for ongoing weekly compensation in the third entitlement period. This could not be resolved and was disputed by the respondent.
13.Ms Diaz’s counsel made oral submissions in support of the application under section 38(2).
14.At request of counsel for the respondent, the respondent was allowed to make written submissions and the following timetable was directed:
(a) the respondent to file and serve written submissions within 21 days, that is by 4pm 18 February 2022, and
(b) the applicant to file and serve written submissions in reply within a further seven days, that is, by 4pm 25 February 2021.
15.The submissions of both parties, both oral and written have been carefully considered and taken into account in making this determination.
16.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
17.It is noted that there is no dispute on the evidence to be determined in view of the agreements reached and concessions made by the respondent as set out above. The question for determination is limited to a jurisdictional one. I note the following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute and attached documents,
(b) Applications to Admit Late Documents filed by Ms Diaz on 3 November 2021 and 12 January 2022.
(c) Reply and attached documents.
Oral Evidence
18.There was no application to adduce oral evidence or to cross-examine.
FINDINGS AND REASONS
19.The dispute requiring determination is whether the Commission has jurisdiction to award
Ms Diaz weekly compensation in the third entitlement period under section 38, specifically section 38 (2).20.There is no evidentiary dispute to be determined, the dispute in relation to injury was not pressed and neither was any dispute pressed in relation to incapacity. The evidence before the Commission is that Ms Diaz has no current work capacity and is likely to continue indefinitely to have no current work capacity. The reports of Dr Samson Roberts, psychiatrist and independent medical expert (IME) qualified on behalf of Ms Diaz dated 11 October 2019 and 14 December 2021 and her treating General Practitioner Dr Lim’s report of 14 December 2021. There is no evidence to the contrary and the respondent has made no submissions to the contrary about Ms Diaz’s current work capacity. The dispute relates to whether the Commission has jurisdiction to make orders in Ms Diaz’s favour. If I am satisfied that such jurisdiction vests in the Commission, it is not disputed that weekly compensation would be awarded in the third entitlement period commencing 16 September 2021 at the rate of $1117.70 per week.
21.The respondent says the Commission does not have jurisdiction to make the orders sought by Ms Diaz because the insurer has not made the assessment that Ms Diaz has no current work capacity and likely to continue indefinitely to have no current work capacity. The respondent submitted the issue is:
“has the applicant established that she is a person who has been assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity?”
22.Section 38 of the 1987 provides as follows:
“38 Weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a)during the last 52 weeks of the second entitlement period, and
(b)thereafter at least once every 2 years.
[Note: An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.]
(5) 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. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
23.Both parties refer to the court of appeal authority of Sabanayagam v St George Bank Ltd [2016] NSWCA 145 (Sabanayagam) and the decision of Arbitrator Harris (as he was then known) in Oliver Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) as well as the decision of Member Isaksen in Lu v Ranstead Pty Limited [2021] NSWPIC 113 (Lu).
24.In Sabanayagam, a court of appeal case decided before the repeal of section 43(3), Sackville AJA (Beazley P agreeing) said:
“Pursuant to s 105(1) of the WIM Act, in order for the Commission to have jurisdiction over ‘matters’, they must ‘arise under’ the WC Act or the WIM Act. The general principle is that a matter arises under a law of Parliament if the right or duty in question owes its existence to the law or depends on the law for its enforcement.
The Worker’s claim to weekly compensation payments arose under ss 9(1) and 33 of the WC Act. Section 9 provides that a ‘worker’ who has received an “injury” is entitled to compensation in accordance with the WC Act. Section 33, which has antecedents in New South Wales going back to at least 1910, provides that if ‘total or partial incapacity results from an injury’, the compensation payable to the injured worker includes a weekly payment during the period of incapacity. Section 33 assumes that a worker has received an injury and therefore satisfies s 9(1) of the WC Act. However, it imposes additional conditions that must be satisfied before the worker becomes entitled to weekly compensation payments. In this case, the Insurer determined long before March 2015 that the Worker had received an injury in the course of her employment and that she had been totally incapacitated for work as a result of the injury.
The Worker’s Application to the Commission in the present case was made pursuant to s 288 of the WIM Act. The controversy the Worker sought to have determined by the Commission in May 2015 was her claim to be entitled to weekly compensation payments after the second entitlement period expired. She was entitled to compensation after the expiry of that period if she satisfied the requirements of s 38(2) or s 38(3) of the WIM Act. The Insurer asserted that the Worker was not entitled to a continuation of weekly compensation payments, while the Worker claimed that the Insurer should have assessed her as satisfying the statutory requirements for a continuation of the payments. The 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.
It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the Insurer had misconstrued the legislation, thereby causing it to make an erroneous decision.”
25.The subsequent repeal of sections 43(1) and (3) means the Commission has jurisdiction, according to the binding court of appeal authority in Sabayagam, to determine disputes under section 38. This accords with what arbitrator Harris held in Roberts:
“Consistent with these powers is the ability to make findings incidental to an order that a worker has satisfied the statutory preconditions in s 38(3). The Commission can make a preliminary finding that it is satisfied that a worker falls within either s 38(2) (has no current work capacity) or s 38(3) (has current work capacity), and if the latter, satisfies the conditions set out in s 38(3)(a), (b) and (c). Whilst the section refers to the insurer deciding the issue, when that becomes a dispute between the parties, it is then within the jurisdiction of the Commission to determine whether the worker has satisfied the various statutory preconditions in s 38(3) of the 1987 Act.
For these Reasons, the respondent’s submission that the Commission lacks jurisdiction to order weekly compensation pursuant to s 38 of the 1987 Act after the second entitlement period is inconsistent with binding Court of Appeal authority and is rejected.”
26.The respondent referred to the decision of Lu and submitted that jurisdiction under section 38 was only enabled because the Member construed the insurer’s IME report that the worker had no capacity as the insurer having made an assessment under section 38 (2) and this can be distinguished from Ms Diaz case because there is no IME report from an expert qualified on behalf of the insurer because Ms Diaz refused to attend the IME appointment arranged by the insurer on 3 May 2019
27.Ms Diaz also refers to the decision of Member Haddock in Dickson v Zurich Financial Services Australia Limited [2022] PIC22 (Dickson).
28.In Dickson the respondent argued that Member Harris in Roberts dealt the Commission’s jurisdiction under section 38(3) and not 38(2) and therefore Roberts could be distinguished.
29.Member Haddock rejected that submission and her summation found at paragraphs 193 to 205 of the case law in arriving at that decision is useful:
“193. Arbitrator Harris held in Roberts that the Commission has the power to order weekly compensation pursuant to section 38 of the 1987 Act; and in that case the applicant had satisfied the necessary conditions of section 38(3) of the Act.
194. Arbitrator Harris referred to the decision of the Court of Appeal in Sabanayagam v St George Bank Ltd [2016] NSWCA 145 (Sabanayagam).
195. The Court of Appeal in Sabanayagam held that the insurer had not made a WCD and remitted the matter to the Workers Compensation Commission for determination of the worker’s claim for weekly compensation (pursuant to section 38 of the 1987 Act).
196. Sackville AJA (Beazley P, as she then was, agreeing) held:
(a) Pursuant to section 105(1) of the 1998 Act, the Commission has jurisdiction over matters that arise under either the 1987 Act or the 1998 Act. A matter arises under a law of the Parliament “if the right or duty in question owes its existence to the law or depends on the law for its enforcement”, at [125];
(b) The worker was entitled to weekly compensation after the second entitlement period “if she satisfied the requirements of s 38(2) or s 38(3)”of the 1987 Act at [127]; and
(c) “It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the insurer had misconstrued the legislation, thereby causing it to make an erroneous decision”, at [128].
197. As Arbitrator Harris noted, there is therefore binding Court of Appeal authority that the Commission does have jurisdiction to determine whether the applicant is entitled to weekly payments pursuant to section 38 of the 1987 Act.
198. Arbitrator Harris provided further reasons in Roberts for his rejection of the respondent’s submission that the Commission has no jurisdiction to award weekly payments during the section 38 period. He referred to the principles of statutory construction stated in Military Rehabilitation Commission v May [2016] HCA 19 at [10], where the plurality held that the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] – [71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.
199. The 1987 Act and the 1998 Act were amended by Workers Compensation Legislation Amendment Act 2018 (the 2018 Act). The jurisdiction of the Commission was enlarged by the repeal of sections 43(1) and 43(3) of the 1987 Act, to which Sackville AJA referred in Sabanayagam; by the repeal of the note to section 105 of the 1998 Act that restricted the Commission’s jurisdiction to determine a dispute about a WCD; by the repeal of various sections relating to review of WCDs (the former sections 44BA to 44BF of the 1987 Act); and by the insertion of section 289B of the 1998 Act, which provides that a “referral of a dispute for determination by the Commission” of a WCD operates to stay the decision.
200. As Arbitrator Harris held, and with which I respectfully agree, contextually, the amendments made by the 2018 Act only served to reinforce the broad jurisdiction of the Commission. Section 289B clearly contemplates that the Commission will determine a dispute about a WCD. There appears to be no logical reason for the Commission to have jurisdiction in the first and second entitlement periods, pursuant to sections 36 and 37 of the 1987 Act, but not in the third entitlement period, pursuant to section 38 of the Act.
201. Despite the reference in section 38 to matters arising under that section being decided by the insurer, I agree with Arbitrator Harris that the broad jurisdiction under section 105 for the Commission to hear and determine all matters arising under the 1987 and 1998 Acts includes jurisdiction to determine disputes regarding workers’ entitlements pursuant to section 38 of the 1987 Act.
202. In Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [45] the plurality of the High Court, citing Legal Services Board v Gillespie-Jones [2013] HCA 35 at [48] held that “a construction that ‘appears irrational and unjust’ is to be avoided where the statutory text does not require that construction”. As Arbitrator Harris observed in Roberts, it would be an absurd construction that, following the 2018 amendments, workers would have no right to contest an insurer’s decision concerning their entitlements to weekly compensation pursuant to section 38 of the 1987 Act.
203. The Commission’s jurisdiction to award weekly compensation after the third entitlement period was confirmed by the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113. It would indeed appear “irrational and unjust” that the Commission would have jurisdiction to award weekly compensation after the expiry of five years, but not to award it during the section 38 period.
204. I respectfully agree with the decision of Arbitrator Harris in Roberts. I reject the respondent’s submission that the decision may be distinguished because it related to a claim pursuant to section 38(3)(b) of the 1987 Act. Arbitrator Harris held that the Commission could make a preliminary finding that it is satisfied that a worker falls within either section 38(2) or section 38(3) of the Act, and, if the latter, that he or she satisfies the conditions of section 38(3)(a), (b) and (c). The factual position in Roberts was that the applicant fell within the provisions of section 38(3) of the 1987 Act. Sackville AJA referred to both sections 38(2) and 38(3) in Sabanayagam.
205. There is nothing in Roberts that would justify distinguishing it from this matter; and nothing in the decisions referred to by Arbitrator Harris that would do so. If the Commission has jurisdiction to award weekly compensation pursuant to section 38(3) of the 1987 Act, as determined by Arbitrator Harris, then it has jurisdiction to award it pursuant to section 38(2) of the Act. I determine that the Commission has jurisdiction to make an award of weekly compensation pursuant to section 38 of the 1987 Act.”
30.In the instant matter the respondent submitted that Roberts dealt with section 38(3) and is not authority for the proposition that the Commission that the Commission can grant relief under section 38(2) when the requirements of that section, namely the insurer has made an assessment, have not been met.
31.The respondent says that this jurisdiction depends on the condition precedent being met that the insurer has made an assessment that the worker has no current work capacity and that capacity is likely to continue indefinitely.
32.The respondent submitted that this assessment by the insurer has not occurred in this case and therefore the Commission cannot determine Ms Diaz’s entitlement under section 38(2).
33.Ms Diaz submitted that the insurer denied liability for the claim as a whole and on this basis did not conduct such an assessment. Ms Diaz submitted that the respondent has not sought to argue that she has a current work capacity or sought to argue that her capacity is other than that no current work capacity and that capacity is likely to continue indefinitely, just that the insurer has not made that assessment.
34.Ms Diaz submitted the fact that the insurer did not conduct a work capacity assessment in these circumstances should not mean that she cannot get an award for ongoing weekly compensation under section 38 in proceedings where the dispute about liability was not pressed by the respondent.
35.The respondent submitted that Ms Diaz refused to attend an independent medical examination (IME) arranged on their behalf to take place on 3 May 2019. Ms Diaz submitted that she declined to attend under section 119 of the Workers Compensation and Workplace Injury Management Act 1998 (the 1998 Act) and that, at no time since, has she been asked to attend a work capacity assessment, an appointment which under the legislation she would have no scope to decline to attend.
36.The problem in this case occurs where an insurer declines liability as a whole and takes no steps to make a work capacity decision such that there is no assessment by the insurer under section 38 in circumstances where it is conceded on the evidence before the Commission the worker has no current work capacity and that capacity is likely to continue indefinitely. There is no contest raised by the respondent about this evidence.
37.Member McDonald dealt with a similar issue in the case of Chea v Woolworths Limited [2022] NSWPIC 26 (Chea). Member McDonald provided the following useful summation at paragraphs 65 to 87 of the legislation and authorities before coming to the determination that the Commission had jurisdiction to determine Mr Chea’s entitlement under section 38(2) despite no assessment having been conducted by the insurer:
“Jurisdiction in the s 38 period
65. Section 105(1) of the 1998 Act provides:
“Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
66. Section 288(1) of the 1998 Act provides:
“Any party to a dispute about a claim may refer the dispute to the President for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.”
67. Keating P’s decision in Lee was made at a time when the Commission did not have jurisdiction to determine disputes about work capacity decisions. His Honour held that the Commission had no jurisdiction to determine a worker’s entitlement under s 38 because a worker’s entitlement must be assessed by the insurer, not by the Commission. In the course of his decision, Keating P said:
“The Commission is a statutory tribunal. It may only exercise the powers and functions that are granted to it by statute. Section 105 of the 1998 Act sets out the jurisdiction of the Commission. It can be seen from the provisions of s 105, that the Commission has been vested with very broad powers to hear and determine all matters arising under both the 1987 and 1998 Acts.
The ‘exclusive jurisdiction”’ granted to the Commission pursuant to s 105(1) is qualified by express statutory provisions in s 43(3) and s 44(5) of the 1998 Act. These provisions remove the Commission’s jurisdiction to determine any dispute about a work capacity decision of an insurer and prevent the Commission making a decision in respect of a dispute before it that is inconsistent with a work capacity decision of an insurer (s 43(3)).”
68. The sections which expressly fettered the Commission’s jurisdiction and required an application for judicial review in the Supreme Court have subsequently been removed. Apart from that, s 38 remains in substantially the same form, subject to amendments about the calculation of weekly compensation.
69. Sabanayagam was also determined before the amendments to s 38. If a work capacity decision had been made, s 43(3) provided that the Commission did not have jurisdiction to determine a dispute about that decision and was unable to make a decision inconsistent with a work capacity decision of an insurer. Sackville AJA (with whom Beazley P agreed) said:
“Pursuant to s 105(1) of the WIM Act, in order for the Commission to have jurisdiction over ‘matters’, they must ‘arise under’ the WC Act or the WIM Act. The general principle is that a matter arises under a law of Parliament if the right or duty in question owes its existence to the law or depends on the law for its enforcement.
The Worker’s claim to weekly compensation payments arose under ss 9(1) and 33 of the WC Act. Section 9 provides that a ‘worker’ who has received an “injury” is entitled to compensation in accordance with the WC Act. Section 33, which has antecedents in New South Wales going back to at least 1910, provides that if ‘total or partial incapacity results from an injury’, the compensation payable to the injured worker includes a weekly payment during the period of incapacity. Section 33 assumes that a worker has received an injury and therefore satisfies s 9(1) of the WC Act. However, it imposes additional conditions that must be satisfied before the worker becomes entitled to weekly compensation payments. In this case, the Insurer determined long before March 2015 that the Worker had received an injury in the course of her employment and that she had been totally incapacitated for work as a result of the injury.
The Worker’s Application to the Commission in the present case was made pursuant to s 288 of the WIM Act. The controversy the Worker sought to have determined by the Commission in May 2015 was her claim to be entitled to weekly compensation payments after the second entitlement period expired. She was entitled to compensation after the expiry of that period if she satisfied the requirements of s 38(2) or s 38(3) of the WIM Act. The Insurer asserted that the Worker was not entitled to a continuation of weekly compensation payments, while the Worker claimed that the Insurer should have assessed her as satisfying the statutory requirements for a continuation of the payments. The 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.
It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the Insurer had misconstrued the legislation, thereby causing it to make an erroneous decision.”
70. The controversy between Mr Chea and Woolworths arose under the 1987 Act. On the basis of Sabanayagam, the Commission has jurisdiction to determine it.
71. Section 38 applies in the period between weeks 131 and 260 of a worker’s entitlement. After 260 weeks, s 39 provides that payments cease unless a worker’s permanent impairment resulting from the injury is more than 20%.
72. In Hochbaum v RSM Building Services Pty Ltd the Court of Appeal overturned a Presidential decision to the effect that the Commission did not have jurisdiction to make an award of compensation after 260 weeks in the period before a worker was assessed as having more than 20% WPI. The Court of Appeal reinstated an order of an arbitrator awarding compensation in the period before the assessment was made.
73. The decision confirms that the Commission has the power to determine disputes about weekly compensation in the period after the s 38 period.
74. Simpson AJA noted that a delay in issuing Medical Assessment Certificates as to the extent of permanent impairment would operate to the benefit of insurers if compensation was not payable in the period before the assessment. In setting out her reasons for agreeing with the orders proposed by the other members of the Court, Her Honour said:
“The unfairness of the result, in the event that delays (however caused) prevented assessment before the expiration of the 5-year period would suggest that the legislature did not intend to make entitlement of a worker suffering the relevant degree of permanent impairment resulting from a work injury subject to the vagaries of processes and procedures in the system of assessment or obstacles that might be thrown in the way of assessment.”
75. If Mr Chea was later assessed as having more than 20% impairment, s 39 and the statements in Hochbaum would allow him to approach the Commission for compensation.
76. Section 38(2) provides that a worker who is assessed by the insurer as having no current work capacity and is likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period. Sub-sections (3) and (3A) also refer to an assessment by the insurer.
77. Section 38(4) imposes a positive obligation on an insurer to conduct a work capacity assessment during the last 52 weeks of the second entitlement period “for the purpose of assessing an injured worker’s entitlement to weekly compensation”. There is no evidence that Woolworths’ insurer fulfilled its obligation to make a work capacity assessment during the last 52 weeks of the second entitlement period.
78. The earlier work capacity decision referred to in the Interim Payment Direction was made before the last 52 weeks of the second entitlement period. A work capacity assessment is not necessary for the making of a work capacity decision (s 44A (3) of the 1987 Act) so the fact of the work capacity decision does not mean that an assessment must have been made.
79. The only decision in evidence is the s 78 notice dated 31 March 2021 and the review decision which followed it. The s 78 notice dated 31 March was prepared by Woolworths’ solicitors. The notice refers to s 43 of the 1987 Act on the third page but does not otherwise explain that reference. A decision to dispute liability to weekly compensation is not a work capacity decision nor is a decision which can be the subject of a work capacity decision (s 43(2) of the 1987 Act).
80. The notice issued on 31 March 2021 disputed liability for weekly compensation and permanent impairment compensation and did not purport to be anything other than a s 78 notice. It disputed liability solely on the basis of Dr Rimmer’s report and relied on his opinion that the aggravation of Mr Chea’s underlying condition – described as degenerative changes – had ceased. On that basis, the notice said that Mr Chea did not suffer incapacity. It denied that he suffered a right hip injury. It did not otherwise deal with the question of capacity.
81. If Mr Beran’s submissions are correct and the Commission has no jurisdiction, a worker is subject to the consequences of any decision the insurer might make, or fail to make, whether or not it complied with the legislation and with no right of review and no mechanism for a worker to enforce his rights.
82. As Ms Goodman submitted, it is inconsistent with beneficial legislation for the insurer to be able to sit on its hands.
83. In Adco Constructions Pty Limited v Goudappel, the High Court said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. ...”
84. There is no reason why s 38 should not be given a beneficial construction. The purpose of the section is to provide for ongoing payments in appropriate circumstances, consistent with the philosophy underpinning the legislation in favour of return to work where applicable.
85. Other than the references to decisions made by the insurer, there is nothing in s 38 which specifically excludes the jurisdiction of the Commission. The Commission has the jurisdiction set out in s 105 of the 1998 Act together with “such powers which are incidental and necessary to the exercise of its statutory jurisdiction.
86. I agree with the statement of Arbitrator Harris in Roberts:
“Consistent with these powers is the ability to make findings incidental to an order that a worker has satisfied the statutory preconditions in s 38(3). The Commission can make a preliminary finding that it is satisfied that a worker falls within either s 38(2) (has no current work capacity) or s 38(3) (has current work capacity), and if the latter, satisfies the conditions set out in s 38(3)(a), (b) and (c). Whilst the section refers to the insurer deciding the issue, when that becomes a dispute between the parties, it is then within the jurisdiction of the Commission to determine whether the worker has satisfied the various statutory preconditions in s 38(3) of the 1987 Act.
For these Reasons, the respondent’s submission that the Commission lacks jurisdiction to order weekly compensation pursuant to s 38 of the 1987 Act after the second entitlement period is inconsistent with binding Court of Appeal authority and is rejected.”
87. The Commission has jurisdiction to determine the dispute as to whether Mr Chea has satisfied the preconditions in s 38, after the second entitlement period.”
38.Here the insurer having declined liability for injury did not make any assessment of Ms Diaz current capacity for work or that her capacity was likely or not to continue indefinitely. The only evidence before the Commission is that Ms Diaz has no current capacity for work as a result of her psychological injury and that capacity is likely to continue indefinitely. The respondent has not sought to argue to the contrary of that evidence. In line with the binding court of appeal authority in Sabanayagam, considered and applied in the line of cases at first instance of Roberts, Dickson and Chea by which I am not bound but with which I agree, I am of the view that the Commission has jurisdiction to make an award under section 38 in the circumstances of this case. The failure of the insurer to make an assessment under section 38 does not preclude the Commission from having jurisdiction to determine Ms Diaz’s section 38 entitlements because otherwise Ms Diaz would be at the mercy of the insurer’s failure to conduct such an assessment and that failure, if it persisted, would leave her without remedy. Such an approach would be inconsistent with the line of authority to which I have referred throughout these reasons.
39.In the event this was my finding, it was agreed between the parties that weekly compensation would be awarded in the third entitlement period commencing 16 September 2021 at the rate of $1117.70 per week and accordingly I will order as follows:
(a) the respondent pay the applicant weekly compensation under section 38 at the rate of $1,117.70 per week from 16 September 2021.
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