Last v WorkCover Corporation - [2010] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
LAST v WORKCOVER CORPORATION
[2010] SASC 338
Judgment of The Honourable Justice Gray
9 December 2010
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING IN COURSE OF EMPLOYMENT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ATTENDANCE AT ANY PLACE FOR PURPOSE OF RECEIVING MEDICAL, SURGICAL OR HOSPITAL TREATMENT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS
Permission to appeal against decision of Full Bench of Workers Compensation Tribunal, determining that an injury sustained by an employee while undertaking a rehabilitation program was not a disability occasioned while in relevant employment and that the employee was not entitled to income maintenance with respect to that injury - whether reasonably arguable that rehabilitation program "relevant employment" within terms of sections 4 and 30(3) of the Workers Compensation and Rehabilitation Act 1986 (SA) - whether reasonably arguable that worker entitled to income maintenance with respect to injury sustained while undertaking rehabilitation program - whether reasonably arguable that income maintenance should be determined by reference to average weekly amount being earned by other persons in the same employment.
Held: permission to appeal granted - matters complained of reasonably arguable.
Workers Rehabilitation and Compensation Act 1986 (SA) s 86A, s 4 and s 30(3), referred to.
Last v WorkCover/EML (Australian Fishing Enterprises Pty Ltd) [2010] SAWCT 23, considered.

LAST v WORKCOVER CORPORATION
[2010] SASC 338
Application
GRAY J.

The appellant sought permission to appeal against a decision of the Full Court of the Workers Compensation Tribunal, determining that an injury sustained by an employee while undertaking a rehabilitation program was not a disability occasioned while in relevant employment and that the employee was not entitled to income maintenance with respect to that injury.
On 3 December 2010 I granted permission to appeal. These are my reasons for that decision.
Background Facts
At relevant times in 2007, the employee and appellant, Wayne Geoffrey Last, was employed in the fishing industry at Port Lincoln in South Australia.
On or about 14 or 15 September 2007, the appellant obtained employment as a deckhand with Australian Fishing Enterprises Pty Ltd. He commenced that employment on 17 September 2007. On that day in the course of that employment, the appellant sustained an injury to his right shoulder. The injury involved major tearing of the tendons in the shoulder.
The appellant lodged a Workers Compensation Claim relating to that injury, which claim was determined as being work related and compensable. The appellant was subsequently paid weekly income maintenance for the period of his incapacity from 17 September 2007 at the average weekly earnings rate of $822.72.
Following the injury sustained on 17 September 2007, the appellant was certified totally incapacitated for work as a deckhand until approximately 17 May 2008, at which time the defendant was certified fit for modified duties with restrictions. At that time, Australian Fishing Enterprises could not offer the appellant suitable light duties within the medical restrictions. As a consequence, on 9 June 2008, the appellant commenced a Rehabilitation and Return to Work Plan which required him to attend at the Royal Society for the Prevention of Cruelty to Animals and perform certain work duties. The appellant was not paid for that work, but continued to receive the weekly income maintenance payments.
On 18 June 2008, while at the RSPCA, the appellant sustained a further injury to his right shoulder. That injury was in the nature of a further tear to the tendon in the shoulder, adjacent to the original tear. The appellant lodged a fresh Workers Compensation Claim relating to that injury.
On 18 July 2008 the Compensating Authority accepted the appellant’s claim for his injury sustained on 17 September 2007, for medical expenses only. On 15 August 2008, the appellant lodged a Notice of Dispute.
Before the Workers Compensation Tribunal, the parties agreed inter alia that the appellant had at all times subsequent to 17 September 2007 and until at least 19 September 2008 remained incapacitated for work as a result of the first disability; at all times subsequent to 18 June 2008 and until at least 19 September 2008 remained incapacitated for work as a result of the second disability. Following the second injury, the appellant has not returned to work.
The Senior Judge concluded that the Compensating Authority had correctly determined the worker’s entitlement to weekly payments, and confirmed the Compensating Authority’s determination.[1]
[1] Last v WorkCover/EML (Australian Fishing Enterprises Pty Ltd) [2010] SAWCT 23.
The appellant appealed from that decision to the Full Bench of the Workers Compensation Tribunal. The Full Bench dismissed the appeal,[2] concluding that there were no earnings in “relevant employment” in the twelve month period prior to the date of the later disability as no “relevant employment” could be identified.
[2] Last v WorkCover Corporation [2010] SAWCT 54.
Appeal
An appeal from a decision of the Full Bench of the Workers Compensation Tribunal to the Full Court lies with permission on an error of law, pursuant to section 86A of the Workers Rehabilitation and Compensation Act 1986 (SA). That section provides:
(1)     A Full Bench of the Tribunal may refer a question of law for the opinion of the Full Court of the Supreme Court.
(2)     Subject to subsection (2a), an appeal also lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
(2a)   An appeal cannot be commenced under subsection (2) except with the permission of a Judge of the Supreme Court.
(3)     On a reference or appeal under this section, the Full Court of the Supreme Court may—
(a)     decide the question of law;
(b)refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)     make consequential or related orders (including orders for costs).
The amount of income maintenance payable under the Workers Rehabilitation and Compensation Act is based upon a worker’s average weekly earnings. In that respect, section 4 of the Act relevantly provides:
(1)Subject to this section, the average weekly earnings of a disabled worker is the average weekly amount that the worker earned during the period of 12 months preceding the relevant date in relevant employment.
(2)     For the purposes of subsection (1), relevant employment is constituted by—
(a)     employment with the employer from whose employment the disability arose; and
(b)     if the worker was, at the time of the occurrence of the disability, in the employment of 2 or more employers, employment with each such employer.
…
(6)In addition, if by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average, the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.
As earlier noted, the members of the Full Bench of the Tribunal in their consideration of this provision concluded that in the circumstances of the within proceeding there was no “relevant employment” in accordance with the terms of the section:[3]
The Act, through s 4(1), directs that the calculation of average weekly earnings must be based upon the income earned in relevant employment during the period of 12 months preceding the relevant date. The relevant employment cannot be the work that Mr Last undertook for the RSPCA because he was not employed by the RSPCA. It cannot be the employment he undertook with SAMS Sea Farm or with Australian Fishing Enterprises because neither employment was employment from which the later disability arose.
There is in this case no basis upon which to apply 4(6). The application of s 4(1) did not fail to produce a fair average, being the pre-requisite for the application of s 4(6). It failed to produce any average because there were no earnings in relevant employment in the twelve month period preceding the later disability. In any event, as we mentioned earlier, s 4 (6) is also directed towards earnings in relevant employment.
It follows that Mr Last does not, independently of the first compensable disability, have a further right to weekly payments of income maintenance as a consequence of the later disability.
[Footnote omitted]
The Full Bench ultimately concluded:[4]
Accordingly, in our view, the learned President was right to uphold WorkCover’s determination. We reach that conclusion not because Mr Last was not earning income at the date of the later disability, as the learned President concluded, but because there were no earnings in relevant employment in the twelve month period prior to the date of the later disability.
The appeal is dismissed.
[3] Last v WorkCover Corporation [2010] SAWCT 54 at [24]-[26].
[4] Last v WorkCover Corporation [2010] SAWCT 54 at [32]-[33].
On the permission application before this Court it was claimed that the Full Bench had erred in law in concluding that there were no relevant average weekly earnings upon which to base income maintenance, as there had been no income earned in “relevant employment” in the twelve month period preceding the later injury. It was said that in arriving at this conclusion, the Full Bench failed to have proper regard to the terms of section 30(3) of the Workers Rehabilitation and Compensation Act. Section 30 relevantly provides:
(1)     Subject to this Act, a disability is compensable if it arises from employment.
(2)     Subject to this section, a disability arises from employment if—
(a)     in the case of a disability that is not a secondary disability or a disease—it arises out of or in the course of employment; or
(b)     in the case of a disability that is a secondary disability or a disease—
(i)    the disability arises out of employment; or
(ii)the disability arises in the course of employment and the employment contributed to the disability.
(3)     A worker's employment includes—
(a)     attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and
(b)     attendance at the worker's place of employment during an authorised break from work; and
(c)     attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and
(d)     attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and
(e)     attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program or for the purposes of a rehabilitation and return to work plan, or to apply for, or receive, compensation for a compensable disability.
[Emphasis added]
It was said that the appellant attended at the rehabilitation program at the RSPCA as a consequence of the earlier compensable disability sustained while working for Australian Fishing Enterprises and therefore, in accordance with the terms of section 30(3)(e), Australian Fishing Enterprises continued to be the deemed employer at the time of the later injury. It was contended that the employment with Australian Fishing Enterprises was the “relevant employment” referred to in section 4(1) and it was from this employment that the later disability arose.
It was further complained that the Full Bench misapplied section 4(6) of the Workers Rehabilitation and Compensation Act, as earlier extracted. It was said that when assessing income maintenance with respect to the later injury, the proper approach would be to assess the amount earned in the preceding 12 months when working for the relevant employer, namely the deemed employer: Australian Fishing Enterprises. It was contended that in this process, the money earned in the single day’s employment with Australian Fishing Enterprises, would be brought to account and relevantly bring the matter within the terms of section 4(6) of the Act; that is, due to the shortness of the time during which the appellant worked for Australian Fishing Enterprises it was not possible to arrive at a fair average weekly amount, and that amount should be determined by reference to the average weekly amount being earned by other persons in the same or similar employment, performing the same or similar work tasks.
I consider that it is reasonably arguable that the rehabilitation program undertaken by the appellant was “relevant employment” with Australian Fishing Enterprises, in accordance with the terms of section 30(3)(e) of the Workers Rehabilitation and Compensation Act. I consider that as a consequence, it is reasonably arguable that the appellant is entitled to income maintenance with respect to the injury sustained while undertaking the rehabilitation program. I consider it is further arguable that the rate of income maintenance should be calculated by reference to the terms of section 4(6) of the Act.
Conclusion
Permission to appeal granted.