Hall v Hallam Manufacturing

[2014] VMC 29

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

C12905061

TERENCE HALL	Plaintiff
V
HALLAM MANUFACTURING PTY LTD	Defendant

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MAGISTRATE:	Magistrate B.R. Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2014
DATE OF DECISION:	7 November 2014
CASE MAY BE CITED AS:	Hall v Hallam Manufacturing

REASONS FOR DECISION

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Catchwords:

Workers Compensation – Application for “Reinstatement” of Weekly Payments – Medical Panel Opinion Adopted and Applied by the Court – Consent Order for Weekly Payments – Whether Worker Entitled to Interest – Accident Compensation Act s114E

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Dawson	Hounslow & Associates
For the Defendant	Mr M Richards	Hall & Wilcox

HIS HONOUR:

1 In this matter, Mr Hall seeks an order that Hallam Manufacturing Pty Ltd (“Hallam”) pay interest pursuant to s.114E(1)(b) consequential upon an Order made by me on 22 September 2014.

2       On that date, by consent, I adopted and applied an Opinion of a medical panel dated 29 July 2013. Consequently, I ordered weekly payments be made to Mr Hall from 11 October 2000 and ongoing in accordance with that Opinion.

3 Hallam has refused to pay interest pursuant to s.114E on the basis that the circumstances of the making of weekly payments to Mr Hall do not come within the provisions of that section, and in particular s.114E(1)(b). Hallam does not dispute that interest is mandatory if s.114E does apply to these proceedings.

4       Both parties agreed on the facts of this case, which I will outline briefly.

5       Mr Hall completed a claim for compensation dated 1 September 1999 alleging injuries to his right leg and back with Hallam.  The authorised agent of the VWA accepted the claim on 21 September 1999.  He then received weekly payments from 11 September 1999 to 9 February 2000, but had returned to work with the defendant on or about 8 November 1999.  He ceased work there when he resigned in about mid May 2000.

6       He then worked for another employer for about three months until about November 2000.  He went on to Centrelink benefits.  Apparently, he did not provide medical certificates between 30 May 2000 and 17 August 2011, that is some 11 years later. 

7       On 17 August 2011, his solicitors wrote to the authorised agent seeking “a resumption of his weekly payments in respect of the claim dated 1 September 1999 which has been accepted".  They enclosed a medical certificate dated 9 August 2011 from a Dr K. Brasier.  They further stated they were awaiting further information as to Mr Hall’s incapacity for work for earlier periods.

8       On 13 September 2011, they sent a further letter to the authorised agent seeking a reply to their earlier letter and enclosing a further medical certificate from Dr Brasier dated 22 August 2011.  On 9 February 2012 the authorised agent acknowledged the request for reinstatement of weekly payments, but required further information. 

9       Mr Hall’s solicitors referred the dispute as to the reinstatement of weekly payments to the Accident Compensation Conciliation Service, which issued a genuine dispute certificate on 1 May 2012.  Mr Hall issued proceedings in this court seeking reinstatement of weekly payments. After a request, I referred questions to a medical panel. 

10 The medical panel delivered an Opinion and I made consequential orders as set out at the start of this decision. As I have already stated, the real issue is whether s.114E, especially s.114E(1)(b), applies to this case.

11 Counsel for the plaintiff submits that s.114E(1A) sets out the only circumstance in which delay is taken into account to minimise any interest payable pursuant to s.114E. However, that argument begs the question as to whether s.114E is applicable in these circumstances in the first place.

12 He submits that an application for reinstatement of weekly payments is a "claim for weekly payments" as contemplated by s.114E. He refers to a decision of County Court Judge Bowman in Pawlowski v Visy [2009] VCC 510 at para. 5, in which His Honour set out the facts of that case stating "Conciliation took place, which resulted in the Plaintiff requesting reinstatement of weekly payments, and this further claim, in turn went to conciliation" (Counsel’s emphasis). 

13      However, that case was different to the present proceeding. The worker in that case lodged a new claim for compensation seeking reinstatement, which is not the case in these proceedings, as I will refer to later.

14 Quite correctly, Counsel concedes that s.114E(1)(c) is not applicable to these proceedings, as these proceedings did not address the actual circumstances of the cessation of weekly payments. Rather, the proceedings address the failure to recommence weekly payments after a request to do so, more than ten years after they had ceased.

15 Also, s.114E(1)(e) is not applicable to these proceedings as weekly payments were not required to be made until after the recent medical panel Opinion was delivered.

16      The agreed facts do not set out why the authorised agent ceased making payments in February 2000.  Mr Hall’s hours of work or wage may have increased while working with Hallam.  In any event, he later changed jobs and stopped putting in medical certificates, which would have given rise to his weekly payments ceasing without formal notice anyway (see, ss.111, 114(2)(c) and 114 (5), amongst other provisions).

17      As stated, these proceedings do not seek to set aside, or even address, the actual cessation of weekly payments. Rather, reinstatement of those weekly payments is sought after this was refused, or at least deemed to be refused, after the request in August 2011.

18 The basis of Hallam’s refusal to pay interest pursuant to s.114E is that the circumstances of this case are not contemplated, and thus are not addressed, by s.114E.

19 I agree with Hallam’s submission in this regard. I have previously handed down a decision on s.114E in Tucker v Patrick Stevedores, on 17 December 2010. Similarly to this case, the issue in that case concerned whether the circumstances of the making of weekly payments came within the provisions of s.114E.

20 In that case, I agreed with Counsel's submission that s.114E is highly prescriptive. At para. 28 in that decision I also noted:-

"Certainly, the scheme of the Act is such that injured workers should receive timely compensation.  I agree that a court should be careful not to stretch the existing provisions too far to cover what might be regarded as an anomaly".

21 The five sub-sections of s.114E(1) address specific circumstances, that is, a conciliator's direction; the rejection of a claim for weekly payments, the termination or reduction of weekly payments, the rejection of a decision to increase weekly payments and other circumstances in which weekly payments fail to be made despite the requirements otherwise to do so. The question to be answered in this case is whether the refusal, or deemed refusal, to reinstate weekly payments is a rejection of a claim for weekly payments.

22 The five sub-sections of s.114E clearly address certain specific provisions in the Act as to “outstanding weekly payments”, that is, a conciliator's direction (s.59(3)), a claim for compensation (ss.103, 105), termination or reduction (s.114), application for increase (s.110) and payments required to be made under the Act (s.114C).

23      Nowhere in the Act is there a specific provision for an application for “reinstatement” of weekly payments whereby, as in this case, weekly payments had been initially made after a consideration of a claim for compensation with an appropriate medical certificate. 

24      Some time later, after weekly payments had ceased to be made, a further medical certificate may be lodged, but without any further claim form. In such cases, the worker, and Mr Hall in this case, seeks to rely on the original claim form and the acceptance of liability therefrom.

25 Certainly, it is not unusual for such reinstatement applications to come before this court. The court has jurisdiction to consider such applications. Such a decision not to reinstate, or fail to reinstate, weekly payments in such circumstances comes within the general jurisdiction of the Act pursuant to s.5(3) and s.39. However, the provisions of the Act do not formally, or specifically, address such an application. Thus, it is difficult to see how s.114E does so either, based on the matters that I have addressed.

26 Counsel for Hallam submits that there is good reason for s.114E to not cover the circumstances as set out in the present case. He submits that the Act did not intend to cover such a case where a worker waits ten years after termination of weekly payments and then lodges a further medical certificate and seeks ten years' interest. I do not see any point in commenting in that regard, having regard to my previous reasons.

27 I therefore find that s.114E, and especially s.114E(1)(b), does not cover the circumstances of these proceedings. I dismiss the claim for interest made pursuant to s.114E of the Act.

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