Flying Solo Properties Pty Ltd t/as Artee Signs v Collet - [2015] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14
APPELLANT:	Flying Solo Properties Pty Ltd t/as Artee Signs
RESPONDENT:	Matthew Collet
INTERVENER:	WorkCover Authority of New South Wales
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-9329/13
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	21 October 2014
DATE OF APPEAL DECISION:	25 February 2015
SUBJECT MATTER OF DECISION:	Claim before 1 October 2012; claim for cost of proposed surgery to worker’s cervical spine; interpretation of s 59A of the Workers Compensation Act 1987; meaning of “payable” and “ceased to be entitled to weekly payments of compensation” in s 59A; cl 5 of Pt 1 of Sch 8 to the Workers Compensation Regulation 2010
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	Slater & Gordon Lawyers
Intervener:	Legal Services, Safety Return to Work and Support
ORDERS MADE ON APPEAL:	1. Paragraph 2 of the Arbitrator’s Certificate of Determination of 21 October 2014 is revoked, but paragraphs 1 and 3 are confirmed. 2. No order as to costs.

INTRODUCTION

Section 59A of the Workers Compensation Act 1987 (the 1987 Act), introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), sets a limit on the payment of compensation for “treatment, service or assistance” under Div 3 of Pt 3 of the 1987 Act. Division 3 deals with compensation for medical, hospital and rehabilitation expenses.
Section 59A now links the entitlement to compensation under Div 3 to a worker’s entitlement to receive weekly compensation. For claims first made before 1 October 2012, such as the present claim, the operation of s 59A is subject to the deeming provisions in the savings and transitional provisions in cl 5 of Pt 1 of Sch 8 of the Workers Compensation Regulation 2010 (the Regulation), introduced by the Workers Compensation Amendment (Transitional) Regulation 2012, which has certain deeming provisions.
The present appeal concerns the Commission’s power to order the payment of compensation for the cost of proposed surgery to the worker’s cervical spine. The resolution of the appeal depends on the interpretation of the weekly compensation provisions in Div 2 of Pt 3 of the 1987 Act and the interaction of those provisions with s 59A and, in this case, cl 5. The essential issues are whether, at the relevant time, weekly compensation was “payable” to the worker, whether, and if so, when, the worker “ceased to be entitled to weekly payments of compensation”, and when a worker “becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation” under Div 3.

PROCEDURAL BACKGROUND

The respondent worker, Matthew Collet, started work with the appellant, Flying Solo Properties Pty Ltd t/as Artee Signs, as a sign installer in 1996.
The Arbitrator found, and it has not been challenged on appeal, that Mr Collet injured his cervical spine in the course of his employment on 18 January 2012 and that, as a result of the injury, it is reasonably necessary that he have surgery to his cervical spine.
Mr Collet did not work between 19 January 2012 and 12 August 2012. In that period, the insurer paid him voluntary weekly payments of compensation. He was certified fit for suitable duties from 12 August 2012 and has worked full-time for the appellant since that time, presumably suffering no loss of income. It is accepted that Mr Collet claimed compensation for his injury before 1 October 2012.
Mr Collet has not had the proposed surgery because the appellant’s insurer has refused to pay for it. The appellant contended that, applying s 59A and cl 5, it has no liability for the cost of the surgery. The Arbitrator found against it and ordered it to pay for the cost of the surgery. The Commission issued a Certificate of Determination on 21 October 2014 in the following terms:
“The Commission determines:
1.     I find that;
(a)The applicant sustained injury to the cervical spine on 18 January 2012 within the meaning of sections 4 and 9A of the Workers Compensation Act, 1987;
(b)That the surgery as proposed by Dr Al-Khawaja, that is C5/6 anterior cervical discectomy and fusion (the surgery) is reasonably necessary and as a result of the injury.
2.     I order the respondent to pay the costs of the surgery.
3.     Award in favour of the respondent in respect of the allegation of injury based on the nature and conditions of employment.”
The appellant has challenged the Arbitrator’s order that it pay the cost of the proposed surgery. The findings in (a) and (b) of the Arbitrator’s order have not been challenged. The WorkCover Authority of New South Wales (WorkCover) has intervened under s 106(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

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.”
The appellant has sought an oral hearing of the appeal. Mr Collet has consented to the appeal being determined on the papers and WorkCover has made no submission on this issue.
The parties have provided comprehensive written submissions on the issues in dispute and, having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the content of the written submissions, 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.

LEGISLATION

Section 60(1) of the 1987 Act, which, along with s 59A, is in Div 3 of that Act, provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59A provides:
“59A Limit on payment of compensation
(1)     Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2)     If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3)     If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)     This section does not apply to a seriously injured worker (as defined in Division 2).” (emphasis added)

The reference to “this Division” in s 59A(1) is a reference to Div 3 of the 1987 Act. For convenience, I will refer to “treatment, service or assistance” as “treatment” and “weekly payments of compensation” as “weekly compensation”.
Clause 5 of the Regulation provides:
“5      Limit on payment of medical, hospital and rehabilitation expenses
In the application of section 59A (Limit on payment of compensation) of the 1987 Act in respect of a claim for compensation made before 1 October 2012:
(a)     the claim is deemed to have been made immediately before 1 January 2013, and
(b)     no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining when a worker ceased to be entitled to weekly payments of compensation).
Note : Section 59A limits the payment of compensation to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. This clause ensures that for claims made before 1 October 2012 the 12 month period will commence no earlier than 1 January 2013.”

LEGISLATIVE CONTEXT

To understand the Arbitrator’s decision, and the parties’ submissions on appeal, it is necessary to understand the extensive changes introduced by the 2012 amending Act. So far as is relevant to this appeal, the 2012 amending Act introduced a totally new regime for the assessment and payment of weekly compensation. It also introduced, in s 59A, significant limits on the recovery of compensation for “treatment, service or assistance” in Div 3 of the 1987 Act.
The operation of s 59A is directly related to when weekly payments of compensation are paid or payable and when a worker has “ceased to be entitled to weekly payments of compensation”. Therefore, to understand how the section works, it is necessary to understand the operation of the new weekly compensation regime and the terminology used in that regime.
There are now several different entitlement periods during which weekly compensation may (or may not) be payable. Each period gives rise to different potential entitlements to weekly compensation, depending on each worker’s particular circumstances.
The “first entitlement period”, in relation to a claim for compensation in the form of weekly payments made by a worker, means “an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which weekly payment has been paid or is payable to the worker” (s 32A). Weekly compensation payable in this period is calculated using one of the four formulas in s 36. Which formula is used depends on whether or not the worker has a “current work capacity” or “no current work capacity”.
The term “current work capacity” means “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment” (s 32A). The term “no current work capacity” means “a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment” (s 32A).
The “second entitlement period”, in relation to a claim for compensation in the form of weekly payments made by a worker, means an “aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker” (s 32A). Weekly compensation payable in this period is calculated using one of the six formulas in s 37. Which formula is used depends on whether or not the worker has a current work capacity. If the worker has a current work capacity, different formulas apply depending on whether the worker has returned to work for not less than 15 hours per week (s 37(2)) or has returned to work for less than 15 hours per week (or who has not returned to work) (s 37(3)).
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 s 38 (s 38(1)). 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” (s 38(2)), calculated under a formula in s 38(6). A worker who is assessed by an insurer as having a “current work capacity” is only “entitled to compensation after the second entitlement period” if he or she meets the three criteria in s 38(3). The quantum of compensation for such a worker is calculated under the formula in s 38(7).
Despite any other provision in Div 2 of Pt 3 of the 1987 Act (which deals with weekly compensation by way of income support, that is, weekly compensation), a worker has “no entitlement to weekly payments of compensation” under Div 2 after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable in respect of the injury (s 39(1)). Section 39 does not apply to a worker whose injury has resulted in permanent impairment of more than 20 per cent (s 39(2)). For such workers, entitlement to compensation may continue after 260 weeks but “entitlement after 260 weeks is still subject to section 38” (see note to s 39(2)). For claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 260 weeks (cl 4 of Pt 1 of Sch 8 to the Regulation).
Weekly compensation (described as “special compensation”) is payable for incapacity after the second entitlement period where that incapacity has resulted from “injury related surgery”. Such compensation is payable at the rate provided under s 37, as if the period of incapacity in respect of which the special compensation is payable occurred during (not after) the second entitlement period (s 41(2)). Special compensation is not payable in respect of any period of incapacity that occurs during the first 13 consecutive weeks after the end of the second entitlement period, or more than 13 weeks after the surgery concerned, or during a period in respect of which the worker is otherwise entitled to compensation after the second entitlement period (under s 38) (s 41(3)). Other restrictions apply to the payment of special compensation that need not be considered in this appeal. The parties have not argued that s 41 applies in this case.
A “work capacity decision” is defined in s 43(1). It is a decision by an insurer:
(a)     about a worker’s current work capacity;
(b)     about what constitutes suitable employment for a worker;
(c)     about the amount an injured worker is able to earn in suitable employment;
(d)     about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings;
(e)     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, and
(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 weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
Work capacity decisions are final and binding on the parties and not subject to appeal or review except review under s 44 or judicial review by the Supreme Court (s 43(1)). 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 (s 43(3)).

ARGUMENTS BEFORE THE ARBITRATOR

The appellant argued that because of the combined effect of s 59A and cl 5, Mr Collet ceased to be entitled to weekly compensation on 31 December 2012 and, since 12 months had passed since that time, compensation was “not payable under” Div 3. That is, compensation was not payable for the proposed surgery because more than 12 months had passed since weekly payments of compensation had been paid or payable.
Mr Collet submitted that “payable” in s 59A(1) can include future payments and, as he was and is still in the second entitlement period, weekly compensation was “payable” to him and the limit in s 59A(1) does not apply. On the same basis, he contended that s 59A(2) did not apply because he had not “ceased to be entitled to weekly payments of compensation”.

ARBITRATOR’S DECISION

Dealing with the application of s 59A, the Arbitrator noted that the parties agreed:
(a)     Mr Collet had been paid weekly compensation from 19 January 2012 to 12 August 2012;
(b)     Mr Collet had not been paid weekly compensation, and had no entitlement to weekly compensation, from 13 August 2012 to 31 December 2013, and
(c)     the appellant’s insurer had not made a “work capacity decision”.
The Arbitrator held (at [121]), following the reasoning in Vella v Penrith City Council [2014] NSWWCC 363 (Vella), that “even if a worker has no actual entitlement to receive weekly compensation during the period, there is no loss of the entitlement until a work capacity decision determines otherwise”. He added, again agreeing with Vella, “that one example where a worker had not ceased to be entitled to weekly payments of compensation is where the worker is still within the second entitlement period” ([122]).
The Arbitrator drew support for this view from the decision of Basten JA in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 (Sok), where his Honour said, at [60]:
“At the cessation of the first and second entitlement periods, the worker’s entitlement to compensation is said to ‘cease’ unless the worker is entitled to compensation under the relevant provision for the next period, which depends upon an assessment of current work capacity. There is compulsion to conduct a timely work capacity assessment in each case: see s 38(4).”
The Arbitrator said that this statement was “consistent with the meaning of cessation of weekly payments occurring after the expiry of the second entitlement period unless the worker was entitled to compensation under the relevant provision for the next period” ([124]). He added (at [125]) that “the meaning of when a worker ‘ceased to be entitled to weekly payments of compensation’ must be by reference to the worker’s entitlements to receive weekly compensation as provided by ss 36–40 and 43 of the 1987 Act”.
Based on this approach, the Arbitrator concluded that Mr Collet had “satisfied the requirement in sub-section (1) [of s 59A] and remains entitled to weekly payments of compensation as defined in sub-section (2)” ([127]). In light of this finding, he did not consider sub-s (3) of s 59A.

ISSUE IN DISPUTE

The issue in dispute in the appeal is whether the Arbitrator erred in his construction of s 59A and cl 5.

SUBMISSIONS

Appellant’s submissions

Counsel for the appellant, Ms Brenda Tronson, submitted that the effect of s 59A and cl 5 is that as Mr Collet had no entitlement to weekly compensation for more than 12 months from 31 December 2012, s 59A(1) applied and he has no entitlement to compensation under Div 3. She argued that a significant problem with the Arbitrator’s approach, and that in Vella, arises from the aggregate nature of the entitlement periods. That is because the entitlement period does not “run” if weekly payments of compensation are not being made.
Accordingly, if weekly payments of compensation are not being made, the entitlement periods never expire and the worker always has a potential entitlement to weekly payments of compensation if he or she becomes incapacitated for work as a result of the injury. She contended that the better interpretation of “entitled to weekly payments of compensation” in s 59A is “entitled to weekly payments of compensation of a non-zero amount”.
Ms Tronson submitted that the passage quoted by the Arbitrator from Sok does not support his position. That is because the context of Basten JA’s comments related to the potential entitlement to weekly payments of compensation, not to a factual entitlement of a particular worker to weekly payments of compensation at a particular point in time.

WorkCover’s submissions

Counsel for WorkCover, Ms Sarah Pritchard SC, with Mr Brendan Lim, submitted that the Arbitrator’s construction of s 59A(2) is erroneous for two reasons. First, it is not consonant with the scheme of the 1987 Act, which provides several different mechanisms by which a worker may cease to be entitled to weekly payments. Second, it gives s 59A(3), which contemplates a worker “becom[ing] entitled to weekly payments of compensation after ceasing to be entitled to compensation under [Div 3 of the 1987 Act]”, no work to do.
Ms Pritchard contended that the phrase “after the worker ceased to be entitled to weekly payments of compensation” in s 59A(2) should be read as meaning “after the weekly payments of compensation which are or have been paid or payable to the worker cease”. That is, the “entitlement” to weekly payments to which s 59A(2) refers should be construed as an actual entitlement, not a theoretical or hypothetical future entitlement. The mere possibility of a future entitlement to weekly payments within the 130-week period referred to in s 38 (or the 260-week period in s 39), does not mean that a worker’s entitlement to weekly payments cannot have “ceased” for the purposes of s 59A.

Mr Collet’s submissions

Counsel for Mr Collet, Mr John Wilson, conceded that cl 5 applies to his client and that, as a result, the claim is deemed to have been made immediately before 1 January 2013. He contended that the expression “unless weekly payments of compensation are or have been paid or payable to the worker” in s 59A(1) does not state the period referrable to when weekly compensation must be paid or payable and that such payments could be made at any time, including the future.
Dealing with s 59A(2), Mr Wilson submitted that Mr Collet “has an ongoing entitlement pursuant to Part 3 Division 2 of the 1987 Act as the [a]ppellant [e]mployer has not made a work capacity decision”. He said it was necessary to ask “are weekly payments of compensation ‘payable’ to [Mr Collet]” and the issue was “how the phrase ‘ceased to be entitled to weekly payments of compensation’ should be applied”.
Looking at the context of the words “ceased to be entitled to weekly payments of compensation” in the 1987 Act as a whole, Mr Wilson drew attention to s 33, which states that “[i]f total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity”.
Mr Wilson said that Mr Collet “had an incapacity but no entitlement to weekly compensation in 2013” but weekly compensation was payable to him during 2014. That was because the Arbitrator found (at [86]) that Mr Collet’s incapacity for work on 14 April 2014 was the result of his neck condition and that he had an entitlement to weekly payments of compensation for that day. (I note that no compensation was claimed for that day and no order made about it.)
As Mr Collet received weekly compensation from 19 January 2012 to 12 August 2012, that is, for more than 13 weeks, he “is in the second entitlement period”. The phrase “ceased to be entitled to weekly payments of compensation” must be interpreted in accordance with s 38(1), which states that 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”.
As the relevant provision must be construed “so that it is consistent with the language and purpose of all the relevant provisions” (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]), it is necessary to apply a construction consistent with the regime of “entitlement” to weekly compensation benefits with respect to all of the sections relevant to weekly compensation entitlement and that entitlement persists until the end of the 130 week period.
Mr Wilson argued that the appellant’s submission ignores the normal meaning of “ceased to be entitled”. Even if Mr Collet has no actual entitlement to receive weekly compensation during the period, there is no loss of the entitlement until a work capacity decision determines otherwise. A worker will not have ceased to be entitled to weekly payments of compensation where he or she is in the second entitlement period and the insurer has not made a work capacity decision.
Mr Wilson argued, as the Arbitrator found, that his position was supported by Basten JA’s statement at [60] in Sok. He also adopted the Arbitrator’s statement that the meaning of “ceased to be entitled to weekly payments of compensation” must be by reference to the worker’s entitlement to receive weekly compensation as provided by ss 36–40 and 43.
Mr Wilson said that s 59A(3) has no application because Mr Collet has not ceased to be entitled to his s 60 expenses.
He said that the appellant’s approach, namely, that the words “of a non-zero amount” should be included in the interpretation of “entitled to weekly payments of compensation”, reads words into the legislation and it is not open to do so (R v Young [1999] NSWCA 166; 46 NSWLR 681; Taylor v Owners-Strata Plan No 11564 [2013] NSWCA 55).
In response to WorkCover’s submissions, Mr Wilson said it was incorrect to say that his interpretation of s 59A leaves sub-s (3) with no work to do. That is because if a worker does not satisfy sub-s (1) then that worker has ceased to be entitled to payments under Div 3 and does not proceed to sub-s (2). In those circumstances, sub-s (3) has work to do in respect of workers who have lost rights under Div 3 where weekly payments are not paid or payable within the first 12 months.
Mr Wilson argued that the construction urged by Ms Pritchard ignores the difference in wording between sub-ss (1) and (2). He said the wording Ms Pritchard wishes to place on “entitled” in sub-s (2) is in terms of when weekly payments of compensation “which are or have been paid or payable to the workers cease”. If the legislature intended to use the words “paid or payable” in sub-s (2), as it did in sub-s (1), then those words would have been repeated. The legislation has not used those words. Accordingly, the use of the word “entitled” in sub-s (2) indicates a broader definition, as described by the Arbitrator, consistent with it being a “right” (Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 (Lennon)).

Discussion and findings

The Arbitrator’s approach and conclusion, and the approach in Vella, was incorrect.
The first point to consider is the operation of cl 5. Though the Arbitrator found that this clause applies to Mr Collet, which finding has not been challenged, he did not in fact apply it. The effect of cl 5 is that Mr Collet’s claim is “deemed to have been made immediately before 1 January 2013” and that “no regard is to be had to any weekly payment of compensation paid or payable to [Mr Collet] before 1 January 2013 (for the purpose of determining when [Mr Collet] ceased to be entitled to weekly payments of compensation)”.
If, for the purpose of determining when Mr Collet ceased to be entitled to weekly payments of compensation, “no regard is to be had to any weekly payments of compensation paid or payable” to him before 1 January 2013, the payments that he received before 1 January 2013 are disregarded when looking at s 59A. Further, applying cl 5, Mr Collet’s claim is “deemed to have been made immediately before 1 January 2013”, that is, it is deemed to have been made on 31 December 2012.
Approaching the application of s 59A(1) with these assumptions, as must be done in the present case, and noting that it is agreed that no weekly compensation was paid to Mr Collet in the 12 months after 31 December 2012, compensation is not payable to Mr Collet under Div 3 for any treatment given or provided “more than 12 months after” his “claim for compensation in respect of the injury was first made” (s 59A(1)). (Whether any weekly compensation was “payable” to Mr Collet in the 12 months after 31 December 2012 is disputed and is discussed below.)
In other words, in the circumstances of this case, no compensation under Div 3 is payable for treatment given or provided more than 12 months after 31 December 2012, that is, after 31 December 2013. As the proposed treatment will be on a date after 31 December 2013, it was not open to the Arbitrator to order the appellant to pay it. However, that does not leave Mr Collet without a remedy. That is because his entitlement to compensation under Div 3 will revive when he is again entitled to weekly compensation, as he will be when he stops work for the surgery (s 59A(3)). (Sub-section (3) of s 59A is discussed further at [74]–[75] below.)
Mr Wilson’s submission that the words “unless weekly payments of compensation are or have been paid or payable to the worker” in s 59A(1) includes potential payments into the future cannot be accepted. That is because the sub-section does not talk about the potential entitlement to weekly compensation in the future. It deals with the period 12 months after the claim for compensation in respect of the injury was first made. Moreover, the entitlement periods defined in s 32A, upon which the Arbitrator relied, only establish periods during which weekly compensation might be “paid or payable”. Merely because the entitlement periods have not expired does not establish that weekly compensation is in fact “payable” in that period.
The entitlement periods merely identify periods during which an entitlement to weekly compensation may arise. They direct attention to the method to be used to determine a worker’s actual entitlement, if one exists, in each particular period. If a worker’s claim for weekly compensation is in the “first entitlement period”, that is, the first 13 weeks, one applies one of the four formulas in s 36. If a claim for weekly compensation is in the “second entitlement period”, that is, 117 weeks after the expiry of the first entitlement period, one applies one of the six formulas in s 37. Different provisions apply after the expiration of the second entitlement period (see s 38). If the correct application of the relevant formula results in a worker having no entitlement to weekly compensation, no such compensation is “payable”.
I accept the Arbitrator’s statement in Brassaud v Chubb Fire Safety Ltd [2014] NSWWCC 202 that weekly compensation is “payable”, within the meaning of s 59A, when a worker has an entitlement to actually receive such compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable (Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 at [61]). However, before it can be determined if weekly compensation is “payable”, one has to apply the terms of the legislation. That means applying one of the formulas in ss 36, 37 or 38, as discussed above.
Section 38 does not assist Mr Collet. That section must be read in context. It merely states that a worker’s entitlement to weekly payments under Pt 3 of the 1987 Act “ceases on the expiry of the second entitlement period” unless the worker is entitled to such compensation under that section. The statement by Basten JA in Sok, on which the Arbitrator relied, related to the potential entitlement to weekly compensation, not to the actual entitlement of a worker to receive such payments.
The contrary view, which the Arbitrator accepted, that “even if a worker has no actual entitlement to receive weekly compensation during the period, there is no loss of the entitlement until a work capacity decision determines otherwise”, is incorrect. The relevant distinction, which the Arbitrator’s approach overlooks, is between a worker being in an entitlement period and the right or entitlement to recover actual weekly compensation. It is only in the second situation that weekly compensation is “payable”.
As observed by Gibbs J in J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 at 650 (Nelson), when dealing with the weekly compensation provisions in the Workers Compensation Act 1926, a worker who establishes that he or she received an injury arising out of or in the course of their employment, and that as a result sustained some incapacity for work, is “in general entitled” to receive workers compensation from the employer. However, such a worker who has made out those facts “may not be entitled at any particular time to payment of compensation, since his right may be dormant” (emphasis added) (Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; 81 CLR 585 at 596).
Thus, as s 33 states, and Mr Wilson submitted, if total or partial incapacity for work results from an injury, the compensation payable by the employer under the 1987 Act to the injured worker “shall include a weekly payment during the incapacity”. However, whether a worker is “entitled” to weekly compensation at any particular time, that is, whether weekly compensation is “payable”, will depend on the application of the legislation to the particular worker’s circumstances. A worker is not “entitled” to weekly compensation just because the entitlement periods have not expired.
The fact that Mr Collet may have had an “incapacity” in 2013 is not determinative of whether weekly compensation was “payable” to him in the relevant period. It is clear that, in the 12-month period after the date of claim, which, in this case was deemed to be on 31 December 2012, Mr Collet had not been “paid” weekly compensation and that such compensation was not “payable” to him. In other words, in the period concerned, he had no entitlement to weekly compensation. Therefore, s 59A(1) applies according to its terms and Mr Collet’s entitlement to receive compensation under Div 3 ceased on 31 December 2013, 12 months after his claim for compensation was deemed to have been made.
Section 59A is concerned with an actual entitlement to receive weekly compensation, not with whether the “entitlement” periods, as defined, have expired. That that must be so is confirmed by the inclusion of sub-s (3) in s 59A, which refers to a worker “becom[ing] entitled to weekly payments of compensation after” having ceased to be entitled to compensation under Div 3. If the entitlement periods determined the periods during which weekly compensation was “payable” there would have been no need to include sub-s (3).
Moreover, as the entitlement periods can be aggregated, whether or not the weeks are consecutive, there will be many situations where those periods will never expire. The clear intention of s 59A, as gleaned from the words used, is to place a limit on the time during which compensation under Div 3 may be recovered. That time (12 months) is referenced against, if weekly compensation has not been paid or payable, the date when the claim for compensation in respect of the injury was first made, or, if weekly compensation has been paid or payable, the date when the worker ceased to be entitled to such payments. If, after either of these dates, a worker again becomes entitled to receive weekly compensation, sub‑s (3) of s 59A applies to revive the worker’s right to compensation under Div 3, but only to the extent permitted by that sub-section.
Given the view I have formed as to the effect of cl 5 and s 59A(1), it is not strictly necessary to deal with s 59A(2). However, in view of the parties’ submissions, and to ensure a consistent interpretation of the whole provision and avoid confusion about its operation, I make the following additional observations.
I do not accept that the appellant’s arguments have ignored the normal meaning of “ceased to be entitled” as they are used in s 59A(2). While there may well be a loss of entitlement to weekly compensation if a worker receives an unfavourable work capacity decision, that is not the only way a worker may “cease to be entitled to weekly payments of compensation”.
The most common way a worker will cease to be entitled to weekly compensation is if he or she has fully recovered from the effects of the injury and returned to normal pre-injury duties without any loss of income. That can occur without a work capacity decision by an insurer or a finding by the Commission. A worker will also cease to be entitled to weekly compensation where an insurer, in a valid work capacity decision, assesses the worker to have no entitlement to such compensation. In either situation, accepting that both may give rise to controversy, and may be difficult to determine with precision, the worker will have no entitlement to compensation under Div 3 for “any treatment, service or assistance given or provided more than 12 months after [the date on which] the worker ceased to be entitled to weekly payments of compensation” (s 59A(2)).
I do not accept that the appellant’s approach reads words into the legislation. The appellant’s approach is a valid method of statutory construction and simply involves interpreting the words used in the context of the legislation overall, having regard to the clear intention of the legislation as gleaned from the words used. A worker will cease to be entitled to weekly compensation if, having previously been entitled to such compensation, the worker’s right to receive actual weekly compensation comes to an end. That can occur because of the application of the legislation or because the worker has recovered from the effects of the injury. That is so even though the right to receive actual weekly compensation may revive at a later time, which situation is dealt with in sub-s (3) of s 59A.
Lennon does not assist Mr Collet. In that case, Basten JA (Macfarlan and Barrett JJA agreeing) observed, consistent with the observations by Gibbs J in Nelson noted at [62] above, that a “right to compensation, with a correlative ‘liability’ in TNT, arose when the injury occurred”. However, as his Honour further acknowledged, the quantification of “the amount payable” depended on agreement or an award of the Commission. Thus, no weekly compensation is “payable” if, after the correct application of the relevant legislation, there is in fact no entitlement to such compensation.
Mr Wilson did not identify the relevance of the one day of incapacity on 14 April 2014 (see [43] above). It does not assist Mr Collet. Once Mr Collet ceased to be entitled to compensation under Div 3, which occurred on 31 December 2013, he is “once again entitled to compensation under” that Division in the circumstances set out in s 59A(3). That sub-section provides that if, after having ceased to be entitled to compensation under Div 3, a worker again becomes entitled to weekly payments of compensation, the worker is “once again entitled to compensation” under Div 3 “but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments of compensation are payable to the worker”.
Thus, as the Arbitrator found that Mr Collet was entitled to weekly compensation on 14 April 2014, Mr Collet was entitled to compensation in respect of any treatment given or provided on that day. There is no evidence of any claim for the cost of such treatment and that issue can be put to one side.
However, s 59A(3) will be relevant when Mr Collet ceases work to have the recommended surgery to his cervical spine. Obviously, Mr Collet will be unable to work while he has the surgery, or while he is recovering from it. Thus, for a period, he will have no current work capacity. As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will “become entitled to weekly payments of compensation”. There is no scope for a contrary argument. As a result, his entitlement to compensation under Div 3 will revive “but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]” (s 59A(3)). That is, while he is having, and recovering from, the surgery.

As that is in the future, and as it is not known how long that period will be, it is not possible to make any finding or order in advance. However, it should be clearly understood that the fact that the time off work for the surgery will result in Mr Collet being entitled to weekly compensation will also entitle him to compensation under Div 3 for the cost of the surgery. In these circumstances, though the Commission cannot currently order the payment of the cost of the surgery, the insurer will have an obligation to meet that cost. I fully expect the insurer to meet that cost without the need for further proceedings in the Commission. A failure to do so would be, in the circumstances of this case, a most serious breach of the insurer’s statutory obligations.

SUMMARY OF THE GENERAL OPERATION OF S 59A

Section 59A works as follows:
(a) for the purposes of s 59A, weekly compensation is not “payable” merely because a worker may have a future right to such compensation or merely because the “entitlement periods”, as defined in s 32A, have not expired;
(b)     weekly compensation is “payable” when a worker has an entitlement to receive actual weekly compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable;
(c) whether, for the purposes of s 59A(2), a worker has “ceased to be entitled” to weekly compensation at a particular time will depend on the circumstances in each case and on the correct application of the terms of the provisions in Div 2 of Pt 3 of the 1987 Act and other relevant provisions of the Act;
(d)     a worker to whom weekly compensation has not been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act for 12 months from the date on which a claim for compensation in respect of the injury was first made, but is not entitled to recover the cost of such treatment given or provided more than 12 months after that date (s 59A(1));
(e)     a worker to whom weekly compensation has been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act for 12 months from the date on which he or she ceased to be entitled to actual weekly compensation but is not entitled to recover the cost of such treatment given or provided more than 12 months after the date on which he or she ceased to be entitled to actual weekly payments of compensation (s 59A(2));
(f) if, by operation of either sub-ss (1) or (2) of s 59A, a worker has ceased to be entitled to compensation under Div 3 of Pt 3, the worker’s right to such compensation is revived during a period when weekly compensation is again payable, but only in respect of any treatment, service or assistance “given or provided during” the period when weekly compensation is “payable” to the worker (s 59A(3)), and
(g) the limits in s 59A do not apply to “seriously injured workers”, as that term is defined in Div 2 of Pt 3 of the 1987 Act.
In a straightforward case, such as the present, the operation of s 59A has posed no real difficulty. However, in the vast majority of cases, where workers’ entitlements to weekly compensation are uncertain and disputed, the provision will create great uncertainty, unnecessary litigation, and, potentially, considerable hardship while parties fight about whether compensation was paid or payable and whether, and, if so, when, the worker’s entitlement to weekly compensation ceased. It is clearly a provision that is in need of urgent reform.

CONCLUSION

It follows that the appeal must succeed and the order that the appellant pay for the cost of the proposed surgery be set aside. However, for the reasons explained above, it is patently obvious that Mr Collet’s entitlement to compensation for the cost of treatment will revive when he stops work to have the surgery that the Arbitrator has determined is reasonably necessary as a result of the work injury on 18 January 2012. The insurer will be obliged to meet those costs.

DECISION

Paragraph 2 of the Arbitrator’s Certificate of Determination of 21 October 2014 is revoked, but paragraphs 1 and 3 are confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

25 February 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE