Karkamaz v Future Form Pty Limited - [2013] NSWWCCPD 68

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Karkamaz v Future Form Pty Limited [2013] NSWWCCPD 68
APPELLANT:	Ali Karkamaz
RESPONDENT:	Future Form Pty Limited
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-7960/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	30 August 2013
DATE OF APPEAL DECISION:	3 December 2013
SUBJECT MATTER OF DECISION:	Section 54 and former s 52A of the Workers Compensation Act 1987; requirements of notice of termination of weekly payments; whether such notice brings to an end an award of the Commission; proof of ground upon which such notice is founded
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Kheir Lawyers
Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The finding and orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 August 2013 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

This appeal concerns the consequences in law of service of a notice by an insurer upon a worker informing him of its intention to discontinue compensation payments. Notice of such intention is required to be given to a worker who has received such payments for a continuous period exceeding 12 weeks: s 54 Workers Compensation Act 1987 (the 1987 Act). Such requirement had application to the present facts.
The notice in question was served by Allianz Australia Workers’ Compensation (NSW) Limited (Allianz), agent for the NSW WorkCover scheme, the insurer of Future Form Pty Limited (Future Form), upon the postal address of Mr Ali Karkamaz (the appellant) on 6 December 2011. Reliance was placed upon the former s 52A of the 1987 Act.
The appellant had received injury arising out of and in the course of his employment with Future Form on 3 November 2005. On 21 December 2006, an Arbitrator of the Commission entered an award in favour of the appellant providing, inter alia, for payment of continuing weekly benefits in respect of his partial incapacity.
On 17 January 2012 payment of weekly benefits ceased, as anticipated by the terms of the notice. The worker then filed an Application with the Commission seeking the following relief:
(a) an order that the insurer’s termination of weekly payments is null and void and of no effect, and
(b) an order that the worker’s weekly payments be resumed as and from 17 January 2012.
Future Form opposed the orders as sought and the matter came before Arbitrator Garth Brown for conciliation/arbitration on 20 March 2013. The matter proceeded to arbitration and the Arbitrator reserved his decision. A Certificate of Determination was issued on 30 August 2013 in which the following determination and orders were made:
“The Commission determines:
1. That the respondent resume payments of weekly payments compensation under section 40 of the Workers Compensation Act 1987 (the 1987 Act) pursuant to orders made in matter WCC 13661 – 06 for the period 18 January 2012 to 21 January 2012 at the rate of $466 per week.
2. That the applicant’s right to receive weekly payments of compensation pursuant to orders made in WCC 13661 – 06 beyond 21 January 2012 is abrogated by operation of section 52A of the 1987 Act.
3. That the respondent pay the applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
It is asserted by the appellant in the Application filed with respect to this appeal that the appeal may not proceed without holding a conference or formal hearing as is permitted by s 354(6) of the 1998 Act. No submission is put in support of that assertion. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed with the appeal ‘on the papers’ without holding any conference or formal hearing.

THE PROCEEDINGS BEFORE THE ARBITRATOR

It is convenient to note at this point that there were a number of factual matters in respect of which there was no dispute between the parties, including the following:
(a) the appellant in 2006 was found to be partially incapacitated by Arbitrator Tanner in proceedings before the Commission in which an award was entered in the appellant’s favour providing for continuing weekly benefits at the rate of $466 pursuant to the provisions of the former s 40 of the 1987 Act;
(b)     a notice concerning termination of weekly payments dated 6 December 2011 was posted on that date to an address: 10/151 Rawson Road, Greenacre. That notice purported to place reliance upon the provisions of the former s 52A of the 1987 Act;
(c)     payment of compensation benefits was terminated on 17 January 2012, being the date of termination specified in the notice;
(d)     the Greenacre address noted above was nominated by the appellant, in writing, as being his address to which “all mail and information” was to be forwarded, and
(e)     the appellant was absent from Australia between 3 July 2011 and 16 March 2012.
The notice, issued by Allianz and posted to the appellant’s nominated address, had been given as was required by the provisions of s 54 of the 1987 Act as it stood before amendment in 2012. I note that s 54 was amended and s 52A was repealed by the Workers Compensation Legislation Amendment Act 2012. The provisions of those sections as they previously stood relevant to the present facts are as follows:
“54 Notice required before termination or reduction of payment of weekly compensation
(cf former s 54A)
(1) If a worker:
(a)has received weekly payments of compensation for a continuous period of at least 12 weeks; and
(b)has provided the worker’s employer, or the employer’s insurer, with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity,
the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation.
Maximum penalty: 50 penalty units.

…

(3) The prescribed period of notice referred to in this section is:

(a)if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year-2weeks, or
(b)if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more-6 weeks.

(4) The notice referred to in this section shall:

(a)be given to the worker personally or by post; and
(b)if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations.

…

(8)Before giving a notice under this section, an insurer must carry out an internal review of the decision to give the notice.”

“52A Discontinuation of weekly payments for partial incapacity after 2 years
(1) Weekly payments of compensation in respect of partial incapacity of work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the capacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:
(a)the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b)the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40(2B)),

(c)the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).

(2) The relevant time for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.
(3) A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.
(4) The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.
…”

Counsel appearing on behalf of the appellant stated at the hearing before the Arbitrator that he sought a “finding that the s 52A [sic] notice is ineffective and therefore the previous award of the Arbitrator continues to apply” (T2.15). That statement appears to be a paraphrase of the statement, at Pt 5 of the Application, concerning relief sought as noted at [4] above.
The evidence before the Arbitrator appears to comprise all that material filed by the parties in proceedings as noted at [9] of the Arbitrator’s Reasons. It is important to note, as was recorded by the Arbitrator, that the appellant placed no reliance upon those documents attached to an Application to Admit Late Documents dated 4 February 2013. Those documents comprised a supplementary statement by the appellant and correspondence from a former employer of the appellant. Nor was reliance placed by the appellant upon the statement dated 23 May 2012 attached to his Application (T1-T2). Notwithstanding some confusion concerning the state of the evidence, I consider it reasonable to assume that those documents noted by the Arbitrator as not being relied upon were not tendered as evidence in the proceedings.
It was argued by counsel for Future Form that the ground relied upon for terminating payments was made clear in the notice, being that the appellant was “not suitably employed and [that he] was not seeking suitable employment”: s 52A(1)(a). That ground applied to the worker’s circumstances at the relevant time, being 6 December 2011, the date of giving of the notice: s 52A(2). Counsel proceeded to summarise the content of the notice which included details of many relevant communications from the insurer to the address at Greenacre and instances of failure by the appellant to respond. Also noted were a number of unsuccessful attempts to contact the appellant by telephone.
Counsel noted that it was agreed that the appellant was “out of the country” at the relevant time; that the insurer was not informed of that fact at that time, and that the evidence established that “every possible human endeavour” was unsuccessfully made by the insurer to contact the appellant.
Counsel conceded that, upon acceptance that the notice was posted on 6 December 2011 the correspondence is deemed by s 76(1) of the Interpretation Act 1987 (Interpretation Act) to have been served on the fourth working day after the notice was posted, being 12 December 2011.
Reliance was placed upon the decision of PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82 (De Brito (No 3)) in which matter the Commission, when dealing with a notice which had the effect of giving notice being four days less than the six week period specified in the legislation, had not been treated as invalid by reason of that shortened period of notice. The notice in the present matter, it was argued, had the consequence that entitlement to weekly benefits came to an end, subject to entitlement to “a further four days of compensation” (T15).
The following arguments were advanced by the appellant’s counsel in support of the assertion that the notice served by the insurer did not have the consequence that the appellant was no longer entitled to weekly compensation:
(a) that a s 54 notice founded upon s 52A cannot “apply” in circumstances such as the present, where a worker is entitled to continuing payment in accordance with an award of the Commission. That argument was “formally” put, given counsel’s acceptance that the decision of Moore ADP in PCR Plaster Settings Pty Ltd v De Brito [2007] NSWWCCPD 159 (Plaster Settings) established otherwise. It was put that the decision was wrongly decided. That submission was put with the object of preserving the appellant’s position should there be a subsequent appeal;
(b)   that the notice “isn’t valid” given that “an insufficient period of time was allowed for under the notice”. That period was agreed to have been less than six weeks. The decision of Moore ADP in Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125 (Rocla) was cited in support of this argument;
(c)   that the facts relied upon which permitted reliance upon s 52A had not been proven by Future Form;
(d)   that the contents of the notice did not make out any ground upon which notice of termination of payments could be made, and
(e)   that an assertion, that failure by a worker to provide relevant information concerning attempts to obtain work entitles the insurer to assume relevant facts, constitutes a reversal of the onus of proof. The decision of Camilleri v Western Sydney Area Health Service [2000] 20 NSWCCR 499 (Camilleri) and Hughston v Hughston and Sons Pty Ltd (1999) 18 NSWCCR 313 were cited in support of this submission.

THE ARBITRATOR’S DECISION

Following a summary of argument as presented at the hearing, the Arbitrator noted a number of matters which were not in dispute (Reasons between [18] and [21]). A finding was made in the following terms (Reasons at [22]):
“I am satisfied that, in having regard to the information contained within the s 54 notice of 6 December 2011 the insurer has reasonably satisfied the information obligations placed upon insurers under the Workers Compensation legislation including the applicable Guidelines. Although satisfied the insurer in this matter has appropriately satisfied the information compliance obligations placed upon insurers by the Workers Compensation legislation I am also satisfied it failed to give the required period of six weeks clear notice of its intention to terminate.”
The Arbitrator proceeded to note the evidence concerning the insurer’s attempts to contact the appellant at [23].
The appellant’s submission, made upon reliance of the decision in Rocla concerning the effect of the shortened period of notice, was rejected by the Arbitrator. It was determined that the findings made by the Commission in Rocla did not support an argument that the notice in the present matter was “invalid” (Reasons at [29]).
A finding was made, following a consideration of the decision of Roche DP in De Brito (No 3), that whilst the shortened period of notice, being by four days, rendered the notice defective, that fact did not have the consequence that the notice was invalid and of no effect. It was determined that a “payment adjustment should be made to enable [the appellant] to have the full benefit of the six week period contemplated [by s 54]” (Reasons at [33]).
The Arbitrator accepted the contention that the insurer/employer “bears the onus of establishing that the ‘grounds for discontinuation’ applied to the worker at the relevant time” (Reasons at [37]).
The existence of a ground “under s 52A(1)” was, it was found, a question of fact and “the onus is upon [the insurer/employer] to discharge the evidentiary onus” that the ground, at the relevant time, was made out (Reasons at [41]).
In the absence of relevant evidence from the appellant, the Arbitrator was “satisfied that there was a proper basis for issuing the notice” (Reasons at [44]).
The Arbitrator proceeded to make the finding and orders noted at [5] above.

SUBMSISIONS, DISCUSSION AND FINDINGS

The appellant relies upon the following three grounds of appeal:
“1.The Arbitrator erred in finding that section 52A could be used by an insurer to terminate an award of weekly compensation of the Commission.
2. The Arbitrator erred in finding that the failure of the respondent to provide 6 weeks clear notice of termination of payments pursuant to section 52A did not invalidate the notice such that it had no effect.
3. The Arbitrator erred in finding that the respondent had a proper and reasonable basis, on the information that it then had, to issue a section 52A notice and erred in allowing the respondent to cure this by reliance upon subsequent evidentiary material.”

Ground 1

It is accepted by the appellant that the Commission and the former Workers Compensation Court of NSW (the former Court) have in earlier decisions determined, or made observations, that a notice validly served in compliance with s 54, founded upon grounds found in s 52A, may have the consequence that entitlement to weekly compensation payments made pursuant to an award of the former Court or Commission is terminated. The authorities cited are:
·Plaster Settings;
·Sippel v Carey’s (Tamworth) Pty Ltd [2000] NSWCC 4; 19 NSWCCR 275 (Sippel), and
·Manpower Pty Ltd v Harris [2011] NSWWCCPD 10.
It is submitted that the decisions cited were “wrongly decided” and that the Arbitrator has erred in his adoption of the reasons found therein.
A number of arguments are advanced in support of the contention that those earlier decisions were wrongly decided. It is put that:
(a)     s 52A should not be taken to have the consequence that a worker is deprived of an award which represents his monetary loss as determined by the Commission. That loss persists even if a worker is “suitably employed”. Should s 52A have the effect of terminating the award, such “would have the effect of removing from the worker that which [the former Court/Commission] has held that [the appellant] could not earn even if he was working in suitable live employment”;
(b)     s 52A is a draconian provision and should be strictly construed;
(c)     there existed in the legislation a means whereby the award might be terminated: the former s 55 of the 1987 Act;
(d)     the issue of a s 52A notice in circumstances where there exists an award and an insurer’s termination of payments constitutes an act in defiance of the award and “could be seen as contempt”;
(e) the existence of s 52A(8), which applies in circumstances where there are proceedings before the Commission concerning weekly payments, would not be needed if that section “generally applied to awards in the Commission after they had been made”, and
(f)      it is generally argued that proceedings before the Commission address issues relevant to an award and that it would be an “incongruous construction” of s 52A that would permit an insurer to “challenge those decisions of the Commission by terminating an award” relying upon grounds provided in s 52A. It is put that the purpose of the provision is to permit claims management in circumstance where a worker is not “compliant with [the] job searching requirements and rehabilitation”.
Section 52A was first enacted in 1996 with the passage of the WorkCover Legislation Amendment Act 1996, relevantly commencing on 4 January 1997. That provision was in terms different to the subsequent section and its operation was governed by a relevant transitional provision (Sch 6 Pt 4 Cl 14). Of significance, cl 14 of Pt 4 to Sch 6 provided that s 52A did not apply to a case where “the worker is receiving or entitled to receive weekly payments of compensation under a court award made before the commencement of that section”.

Section 52A was subsequently amended and took on, substantially, its form as presently relevant following passage on 1 August 1998 of the Workers Compensation Legislation Amendment Act 1998. It is that section which is presently relevant. The amendments in that Act provided for the inclusion in Sch 6 Pt 4 of a new clause, numbered 15, which concerned the operation of the new s 52A. That clause made no reference to circumstances where an existing award had been made prior to amendment of the section or otherwise. Clause 14 was not repealed.
It is significant in the context of the present argument as raised by the appellant, that the Court of Appeal in Royal Society Mothers and Babies v Bowers [2000] 49 NSWLR 421 (Bowers) had occasion to consider the question as to whether service of a notice of termination of payments (s 54) founded upon grounds found in s 52A (as amended in 1998) had the consequence of terminating weekly entitlement of payments which had followed the making of an award by the former Court pursuant to the former s 40 of the 1987 Act.
The primary issue in Bowers concerned the question as to whether any protection of the worker’s award was afforded by the terms of Sch 6 Pt 4 cl 14. It was held by Clarke JA (Priestley and Stein JJA agreeing) that cl 14, whilst surviving the amendments, had no application in circumstances where the relevant provision was the amended s 52A. The consequence of that finding was that the privative provisions of s 52A had the effect of bringing the award earlier made to an end. The employer’s appeal was upheld.
Acceptance on this appeal of any of those arguments advanced as noted above at [27] would require disregard of the decision in Bowers which binds the Commission. I conclude that s 52A has application according to its terms and, subject to proof of matters relied upon in support of termination of continuing payments of compensation in respect of partial incapacity, and following service of a notice pursuant to s 54, has the consequence that the appellant’s right to such payments is terminated. In so concluding, it is apparent that I agree, respectfully, with those matter stated by Burke J in Sippel at [93];
“Both forms of s 52A were and are framed in terms of ‘weekly payments of compensation in respect of partial incapacity of work are not payable…’ in the specified conditions. S 9 provides that a relevantly injured worker ‘shall receive compensation from the worker’s employer in accordance with this Act’ (emphasis added). S 52A provides circumstances in which compensation is not payable under the Act. It seems to me that, despite the obvious practical problems, the provision has the effect according to its terms including that of effectively terminating an award of the Court by operation of law in the appropriate circumstances. As to whether or not the circumstances were appropriate would be a matter which the Court has jurisdiction to determine.”
It follows that ground one on appeal fails.

Ground 2

It was agreed that having regard to the date of posting, 6 December 2011, and the operation of s 76(1) of the Interpretation Act, termination of payments on 17 January 2012 had occurred four days short of the six week period specified in s 54. It is put that there “is a conflict in the decisions of the Commission … as to the effect of that failure to provide appropriate notice”.
The appellant correctly notes that in De Brito (No 3) the Commission held that truncation of the period of notice (in that case also by a period of 4 days) rendered the notice defective but not invalid. Correction was effected by ordering payment of benefits for the omitted four days.
In Rocla the observations by Moore ADP are, correctly in my view, characterised by the appellant as obiter. In so far as those observations are said to support this ground, it is to be noted that failure to provide a full six weeks’ notice is said by Moore ADP to render the notice “defective” as found by the Arbitrator in that case. Such is a similar finding to that made in De Brito (No 3) and does not necessarily, in my view, lead to the conclusion that the notice is invalid.
It is argued that the requirement is that six weeks’ notice be given; termination of payments without such notice is an offence, and “there is neither power to extend or reduce the time prescribed nor any power for the Commission to relieve an insurer of the times [sic] prescribed”.
It is also argued that the time requirement (6 weeks) is an “essential condition to the notice” and that such requirement is “mandatory”. Notwithstanding that submission, reliance is placed upon a number of authorities which consider the question raised by failure to comply with a requirement stipulated by statute. Those authorities include the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Blue Sky) where the facts concerned a breach of a condition regulating the exercise of a statutory power. The majority (McHugh, Gummow, Kirby & Hayne JJ) stated (at [91]):
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.” (footnotes omitted)
Whilst the present facts do not concern “exercise of a statutory power” as was considered in Blue Sky, the High Court’s decision provides, as put by the appellant, valuable guidance when consideration is given to the consequences of service of the defective notice. I reject the suggestion that the Commission must determine the question as to whether the time requirement is “mandatory” as is made in submissions, and conclude that the real question concerns the existence or otherwise of a “legislative purpose to invalidate” the notice as discussed by the majority in Blue Sky.
The proper application of s 54 and the consequences of non-compliance by an insurer were considered by the Court of Appeal in BW Esler Services Pty Ltd v Dulhunty (2000) 21 NSWCCR 267 (Dulhunty). It is relevant to note those matters observed by Powell JA concerning the effect of s 54 (at [47]):
“…it seems to me that upon its proper construction, s 54 does not provide that the discontinuation of payments of weekly compensation to an employee who no longer has a right to continue to receive such payments is to be regarded as ineffective if no notice has been given or if a notice which does not comply with the provisions of s 54 of the Act and cl 15 of the Regulation has been given; rather, the provisions of s 54(1), s 54(2) would seem to make clear that, in that event, the only consequences to which an employer is to be exposed are, first, prosecution for an offence; and, second, in the event that no notice, or an insufficient period of notice, has been given, liability to pay to the employee concerned an amount equal to the amount of the compensation or additional compensation that would have been payable during the prescribed period, or the balance of the prescribed period, of notice.”
The opinion of Giles JA in Dulhunty on this subject is to be found at [58]:
“It is true, as Powell JA says, that s 54 does not provide that a discontinuation of payment of compensation is ineffective if no notice or a non-complying notice has been given.”
His Honour was in dissent in Dulhunty. That dissent was, in part, founded upon the view expressed that “s 52A itself must be considered” when determining the consequences of the notice. In that respect, Mason P agreed; however his Honour the President agreed in the reasons otherwise stated by Powell JA and the orders proposed by his Honour.
It should be further noted that Giles JA in Dulhunty expressed the view that the former s 54(2) “confers an entitlement to compensation in respect of a discontinuation for which the prescribed period of notice was not given” (at [58]).
There was, at the time relevant on the present facts, no prescribed form of notice. Earlier provisions concerning form of notice were not revived following repeal of cl 15 of the Workers Compensation Regulation 2003. The defect with which the Commission is presently dealing came about not by reason of an express failure to give the required notice, but by reason of the shortening of the period of notice provided following application of s 76 of the InterpretationAct.
The 1987 Act makes express provision for correction of any shortfall of payments: s 54(2). It is that provision which demonstrates, in my view, that failure to provide the prescribed period of notice is not fatal to the efficacy of the notice. The legislature is not to be taken to have intended to invalidate the notice. A correction as permitted by s 54(2), as was made by order of the Commission in De Brito (No 3), was made by the Arbitrator in this matter. That course was correct. It follows that ground two must fail.

Ground 3

The thrust of this ground is that, at the time of service of the relevant notice, the insurer had no evidence nor knowledge of the facts relevant to the ground relied upon for termination of payments. That being so, it is argued, the notice was “defective and invalid”. Reliance is again placed upon the decision in Blue Sky.
The ground relied upon by the insurer was that provided by s 52A, and was expressed in the s 54 notice as follows:
“You are not suitably employed and are not seeking suitable employment.”
The subject notice contained an extensive and comprehensive statement of matters relevant to the insurer’s “decision to terminate” the appellant’s weekly payments. Matters particularised concerned repeated and very numerous attempts by the insurer to contact the appellant by post and by telephone, and his failure to communicate concerning his obligations with respect to a return to suitable duties.
It is argued on behalf of Future Form that there was no obligation upon it to establish “actual knowledge” that Mr Karkamaz was not “suitably employed or seeking suitable employment” at the relevant time (6 December 2011). I accept that submission and am of the view that in circumstances where an insurer has a basis to conclude that a worker was not “suitably employed” etc, such is sufficient to permit particularisation of such a ground in any notice that may be issued. Should such an assumption be in dispute, as in the present matter, a determination of such dispute may come before the Commission.
The task before the Arbitrator was to determine whether the existence of the ground at the time of service of the notice had been established. As to the question of onus of establishing relevant facts it is accepted that such is upon Future Form. That is consistent with the views expressed by Burke JA in Camilleri (at [5] and [39]).
The appellant was, at the relevant time and for a period of months before and after, absent from Australia. That fact, which was not known to the insurer at the relevant time of service of the notice, was conceded by Mr Karkamaz. That was the only fact known as to his activities between July 2011 and March 2012 at the date of hearing before the Arbitrator.
The facts known to the insurer at the relevant time permitted, in my view, issue and service of the notice founded upon s 52A. In the absence of evidence at the hearing from Mr Karkamaz concerning matters relevant to the disputed allegation it was, in my view, open to the Arbitrator to conclude, as he did, that facts relevant to the ground relied upon by the insurer existed at the relevant time. Such an approach by an Arbitrator was approved on appeal before Candy ADP in Hadchiti v New South Wales Police Force (No 1) [2009] NSWWCCPD 87 (at [101]) where it was stated:
“The Arbitrator clearly recognised that the onus lay on the employer to establish on the balance of probabilities that the worker was not seeking suitable employment. Such evidence would ordinarily come from the mouth of the worker as is the case here through the worker telling others what efforts had been made to obtain suitable employment. The employer obtained an admission from the worker to Ms Pyke which if unexplained was sufficient to bring into operation the provisions of section 52A. The worker chose not to specifically respond to this admission or attempt to refute it. It was open to the Arbitrator to note this and draw the conclusion that the worker could not do so. This does not amount in my opinion to reversing the onus, but rather is a comment, properly made, as to the conclusions which should be drawn from the evidence.”
In my opinion no error is made out concerning the Arbitrator’s conclusions concerning this question as appear at [41] of his Reasons:
“To the extent it was submitted on behalf of the applicant that the operation of s 52A required the insurer to be positively satisfied that a ground under s 52A(1) existed at the time the s 54 notice was issued in my view misstates the test. I am not satisfied a proper construction of the wording of the section places such a definite knowledge requirement upon the insurer. Whether or not a ground under s 52A(1) existed at the relevant time is a matter of fact and if disputed the onus is upon the respondent to discharge the evidentiary onus that the ground relied upon by the insurer existed at the relevant time. In this matter the insurer was unable to contact the applicant over a lengthy period of time despite very extensive efforts to do so. The insurer took extensive actions to inform the applicant of his job seeking obligations and sought responses but received no response over an extended period of time. The insurer may not have become on actual notice that the applicant was outside the country during the seven and a half month period from about July 2011 to March 2012 until after the notice was posted to the applicant on 6 December 2011 however in satisfying its requirement to discharge its evidentiary onus the respondent is in my view entitled to rely on facts or other evidence that was not in its possession at the time the decision was made that supports the decision.”
Ground three also fails.

DECISION

The finding and orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 August 2013 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady
Deputy President

3 December 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE