Martin v Employers Mutual Ltd - [2012] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
Question of Law Reserved
MARTIN v EMPLOYERS MUTUAL LTD
[2012] SASCFC 36
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
20 April 2012
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - ONUS OF PROOF
Question of law referred by the Full Bench of the Workers Compensation Tribunal - whether in the judicial determination of a dispute as to whether the worker has no current work capacity within the meaning of s 35B(1) of the Workers Rehabilitation and Compensation Act 1986 (SA), it is the worker or the compensating authority who has the onus of proof - discussion of principles relating to appropriateness of question referred - question reformulated by Tribunal.
Held: the compensating authority bears the onus of proof in the judicial determination by the Tribunal.
Supreme Court Act 1935 (SA); Workers Rehabilitation and Compensation Act 1986 (SA) s 3, s 35, s 35A, s 35B, s 35C, s 36, s 53, s 86A, s 88DA, s 89A, s 90, s 91, s 92D, s 94A, s 108; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 15; Compensation (Commonwealth Government Employees) Act 1971 (Cth); Commonwealth Employees Compensation Act 1930-59 (Cth), referred to.
The Commonwealth v Muratore (1978) 141 CLR 296; J & H Timbers Pty Ltd v Nelson (1972) 124 CLR 625; Phillips v The Commonwealth (1964) 110 CLR 347; Rapson v WorkCover Corporation (2007) 98 SASR 86, applied.
Royal Adelaide Hospital v Withers [1999] SAWCT 132; Kairns v WorkCover Corporation (2004) 90 SASR 81; WorkCover Corporation v Davey (2011) 110 SASR 172; WorkCover Corporation v Fogliano (2000) 76 SASR 192; Commonwealth v Portelli (1982) 59 FLR 203; WorkCover Corporation v Toohey [2001] SAWCT 53; Simpson Ltd v Arcipreste (1989) 53 SASR 9; Mitsubishi Motors Australia Ltd v Sosa (Unreported, Supreme Court of South Australia, Full Court, 8 June 1995, Jdgt No S5084), considered.

Question of Law Reserved
MARTIN v EMPLOYERS MUTUAL LTD
[2012] SASCFC 36
Full Court: Doyle CJ, Anderson and White JJ

DOYLE CJ: I would answer the question reserved for consideration of this Court in the manner proposed by White J, and for the reasons that he gives for answering it in that manner. There is nothing that I wish to add to his reasons.
ANDERSON J. I agree that the question should be answered in the manner suggested by White J. I agree with White J’s reasons.
WHITE J. The Full Bench of the Workers Compensation Tribunal has, under s 86A of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA), referred a question of law to this Court. The question concerns the onus of proof in proceedings for the judicial determination of a dispute arising under s 35B as to the extent and likely duration of a worker’s incapacity for work.
Statutory Context
By s 15 of the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) (the 2008 Amendment) significant changes were made to the provisions in the WRCA concerning a worker’s entitlement to weekly payments of income maintenance. The amendments with which this referral is concerned came into effect on 1 July 2008.
Section 35 was wholly deleted and a new s 35 substituted. Section 35A-35C were also introduced. Section 35(1) now provides:
Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with this Division.
Section 35A provides for entitlement periods, ie, periods of incapacity for work in respect of which the worker is entitled to payments of compensation at different (and reducing) rates. The first entitlement period is an aggregate period not exceeding 13 weeks; the second a further aggregate of 13 weeks commencing on the expiry of the first; and the third an aggregate period not exceeding 104 weeks commencing after the end of the second entitlement period. Thus s 35A contemplates that a worker may have an entitlement to weekly payments of income maintenance for an aggregate period of 130 weeks.
A totally incapacitated worker is entitled to weekly payments during the first entitlement period at a rate equal to the worker’s notional weekly earnings (subs (1)(a)); during the second entitlement period the rate reduces to 90 per cent (subs (2)(a)); and during the third entitlement period the rate reduces to 80 per cent (subs (3)(a)). Counterpart provisions apply in respect of the partially incapacitated worker.
Section 35B of the WRCA contains circumstances in which a worker with no work capacity may have an entitlement to weekly payments of income maintenance after the expiry of the third designated period. Section 35C specifies circumstances of a different kind in which a partially incapacitated worker may have a corresponding entitlement. Section 35B is as follows:
(1)Subject to section 35C (and to the other provisions of this Act), a worker's entitlement to weekly payments under this Division ceases at the end of the third entitlement period under section 35A (unless brought to an end before this time) unless the worker is assessed by the Corporation as—
(a)     having no current work capacity; and
(b)     likely to continue indefinitely to have no current work capacity.
(2)If a worker qualifies under an assessment under subsection (1), the worker is entitled to weekly payments while incapacitated for work in respect of a particular disability equal to 80% of the worker's notional weekly earnings as though the third entitlement period were continuing.
(3)A review of the assessment of a worker under this section may be conducted by the Corporation at any time and must be conducted as often as may be reasonably necessary, being at least once in every 2 years.
(4)In connection with the operation of subsection (1), a worker who, immediately before the end of a third entitlement period, is in receipt of weekly payments under paragraph (a) of section 35A(3) is entitled to continue to receive weekly payments at the rate prescribed by that paragraph unless or until the Corporation has assessed whether the worker falls within the category of a worker who may be considered as—
(a)     having no current work capacity; and
(b)     likely to continue indefinitely to have no current work capacity.
(5)An assessment under subsection (4) may be made before or after the end of the third entitlement period.
(6)Despite section 35A, the Corporation must not discontinue weekly payments to a worker who is subject to the operation of subsection (4) until it has given the worker at least 13 weeks notice in writing of the proposed discontinuance (and the requirements of section 36 will not apply with respect to this notice).
(7)A notice under subsection (6) must not be given unless or until the assessment envisaged by subsection (4) has been undertaken.
(8)Subsections (4), (5), (6) and (7) do not apply if the Corporation discontinues the worker's weekly payments under section 36 or suspends such payments under another provision of this Act.
(9)The Corporation may, on the basis of a review under subsection (3), discontinue weekly payments under this section if satisfied that the worker has a current work capacity.
It can be seen under s 35B(1) a worker’s entitlement to weekly payments will cease at the end of the third entitlement period unless the worker is assessed by the Corporation as having no current work capacity and as likely to continue indefinitely to have no current work capacity. Workers whose condition and prospects are assessed in this way are entitled to weekly payments at a rate equal to 80 per cent of the worker’s notional weekly earnings as though the third entitlement period was continuing (subs (2)). The Corporation must carry out periodic reviews of the assessment made under subs (1) and at least one review every two years (subs (3)). Subsections (4)-(7), to which I will refer later, appear to provide some safeguards to a worker at the end of the 130 week period.
The Worker’s Claim for Income Maintenance
Mr Martin is the worker in the proceedings before the Tribunal. He suffered an incapacitating injury on 26 March 2007. After a period of treatment and a return to work, Mr Martin ceased work on account of his injury on 15 October 2007 and has not returned to work since.
Employers Mutual Limited (EML) is the respondent to the proceedings in the Tribunal. Under contractual arrangements with WorkCover Corporation (the Corporation), EML has had delegated to it many of the Corporation’s statutory functions, powers and discretions. In particular, the Corporation has delegated to EML its powers and discretions with respect to the management and determination of Mr Martin’s claim for compensation. It is a “compensating authority” as that term is used in the WRCA.
On 29 June 2010, EML notified Mr Martin that the third entitlement period in his case had expired; that it had assessed his entitlement to income maintenance under s 35B(1); and that it had determined that he had a current work capacity. By the same letter EML gave Mr Martin 13 weeks notice that his weekly payments of income maintenance would cease.[1] EML stated its determination in two separate, albeit similar, passages. In the first it said:
I have determined that you have a current work capacity and as a result your weekly payments will stop in accordance with sections 35B(1), and 36(1)(i) of the Act.
As you were not in employment immediately before the end of the third entitlement period and were receiving weekly payments on the basis of no current work capacity, I am giving you 13 weeks notice before weekly payments are stopped pursuant to s 35B(6) of the Act and therefore your weekly payments will cease 13 weeks after you receive this decision.
In the second passage EML said:
Having reviewed all available information on file, I have determined that you have a current work capacity and in particular, have capacity to undertake suitable employment as an Assembler on a part time basis. Therefore, your weekly payments will cease in accordance with sections 35B(1), and 36(1)(i) of the Act.
It can be seen that EML was indicating that it had made a “determination” of Mr Martin’s capacity for work and that it considered that he had the capacity to undertake work as a part-time assembler. The letter went on to explain in some detail the basis of EML’s decision.
[1] At the hearing, it was common ground that the amendments effected by s 15 of the 2008 Amendment applied to Mr Martin – see Sch 1, cl 4 to the 2008 Amendment.
On 8 July 2010, Mr Martin lodged a notice of dispute in the Tribunal in relation to the determination of EML. His notice asserted (relevantly):
1.     The decision is against the evidence and the weight of evidence.
2.     The decision is incorrect in fact and in law.
3.     The worker does not have a current work capacity.
4.The Assembler position identified in the decision is not suitable employment having regard to the worker’s place of residence, the worker’s restrictions owing to his compensable disabilities and the fact that the worker has not performed any work since October 2007 and has not been effectively rehabilitated into any alternative employment since this time.
Mr Martin also disputed that his third entitlement period had expired but he has since abandoned that contention.
EML confirmed its decision on the reconsideration required by s 91 of the WRCA. Following a conciliation hearing, a member of the Tribunal referred the dispute into the Tribunal for judicial determination (s 92D). The notice of referral is uninformative as to the dispute which was referred, saying (relevantly) no more under the printed heading “Nature of Dispute” than that it was “Section 35B”. For the purposes of the referred question, I will assume that the dispute referred was that articulated by Mr Martin in paragraphs (1) to (4) inclusive of the notice of dispute lodged on 8 July 2012.
The dispute arose therefore from Mr Martin’s challenge to EML’s assessment that he did have a current work capacity and that part-time work as an assembler was suitable employment for him.
In the Tribunal the proceedings were referred to the Full Bench which referred the following question of law for the opinion of this Court:
Which party bears the burden of proof on the judicial determination of a dispute about whether a worker does have a current work capacity, or does not have a current work capacity which is likely to continue indefinitely, following an assessment made under s 35B of the Act?
Inappropriateness of the Question Referred
In Rapson v WorkCover Corporation,[2] this Court refused to answer questions referred for its opinion by the Tribunal under s 86A of the WRCA. It did so because, amongst other things, the questions referred were hypothetical and disengaged from the circumstances of the compensation claim to which they were said to relate. In my reasons (with which Duggan and Kelly JJ agreed), I reviewed a number of authorities regarding the appropriate use of the case stated procedure. Apart from adding references to WorkCover Corporation v Fogliano[3] and to Commonwealth v Portelli,[4] it is not necessary to review the authorities again. Instead, I summarise some of the relevant principles as follows:
1.The case stated procedure cannot be used to have this Court give mere advisory opinions or to answer questions which are hypothetical or which, if they are to have any application in the case giving rise to the referral, depend upon further findings of fact;
2.The answers on the case stated must be capable of determining the rights and liabilities of the parties, or at least capable of resolving an intermediate step in the determination of those rights;
3.The questions reserved must be related to the facts in the case stated;
4.In the absence of statutory authority, it is not open to a court considering questions of law referred to it to make its own findings of fact, or even to draw inferences from the facts disclosed to it;
5.Neither s 86A of the WRCA nor the Supreme Court Act 1935 (SA) authorise this Court to amend the questions of law referred to it.
[2] [2007] SASC 172; (2007) 98 SASR 86.
[3] [2000] SASC 28 at [9]; (2000) 76 SASR 192 at 196.
[4] (1982) 59 FLR 203.
The question originally referred to this Court by the Tribunal suffered from many of the defects identified in pars 1, 2 and 3 of this summary. The question, being expressed in general terms, was disengaged from the circumstances of the dispute notified by Mr Martin. Further the reference in the question to “an assessment made under s 35B of the Act” failed to distinguish between the two different kinds of assessment contemplated by s 35B, namely, in subss (1) and (3). It should not be assumed that the burden of proof in each case will be the same. These matters indicated that the Tribunal was seeking an advisory opinion as to the onus of proof generally in proceedings under s 35B.
The Court drew the parties’ attention to the shortcomings in the referred question and suggested that it should be revised. Subsequently the Tribunal referred the following question for the consideration of this Court, in lieu of that which it had originally referred:
There is a dispute between Mr Martin and Employers Mutual Limited regarding Mr Martin’s entitlement to weekly payments under s 35B(1) and (2) of the Workers Rehabilitation and Compensation Act 1986. The parties agree that Mr Martin has been receiving weekly payments of income maintenance calculated in accordance with s 35A(3)(a) for a period beyond the third entitlement period. They join issue on whether Mr Martin has no current work capacity that is likely to continue indefinitely within the meaning of s 35B(1) of the Act, and whether his entitlement to payments has ceased or can be discontinued. When this dispute is referred into the Tribunal for judicial determination, which party bears the burden of proving whether or not Mr Martin has no current work capacity that is likely to continue indefinitely within the meaning of s 35B(1) of the Act?
Insofar as this question seeks this Court’s opinion as to the onus of proof on the issue of whether Mr Martin’s incapacity is likely to continue indefinitely, it too goes beyond the scope of the issues arising in the present proceedings in the Tribunal. As already seen, EML’s assessment was that Mr Martin had some current work capacity and, on that basis, it determined that his entitlement to weekly payments would cease. It did not rely on the second element in s 35B(1), namely, the probable duration of his incapacity. That element has not been raised for determination by the Tribunal.
In these circumstances, I consider it appropriate to treat the question as one relating only to the onus of proof on the question of whether Mr Martin has no current work capacity.
The following reasons are directed to the substituted question.
The Submissions of the Parties
Counsel for Mr Martin submitted that EML had both the legal and evidential burden of proving that Mr Martin had some current work capacity. His submissions were to the following effect. Under s 35B(1), the entitlement of Mr Martin to weekly payments of income maintenance did not cease altogether at the end of the third entitlement period. Instead, his continued entitlement was dependent on the outcome of an assessment by EML of the extent and likely duration of his incapacity. If the assessment was that he was totally incapacitated and was likely to remain so (which I will call a “total/permanent assessment”), then his entitlement continued. On the other hand, if the assessment was either that he had some current work capacity, or if no such capacity, that that condition was not likely to continue indefinitely (a “partial/non‑permanent assessment”) then his entitlement ceased.
Counsel submitted that, by making and acting on its partial/non‑permanent assessment of Mr Martin’s condition on 29 June 2010, EML was asserting the existence of circumstances warranting the cessation of Mr Martin’s entitlement. Accordingly, on the referral of the dispute to the Tribunal, Mr Martin was in substance defending an existing entitlement to weekly payments against EML’s determination that they should cease. Those circumstances indicated, it was submitted, that EML should have the burden of proof.
Counsel submitted in the alternative that, at the very least, EML was asserting that a change in the circumstances in which Mr Martin had an accepted right to ongoing income maintenance had occurred. This had the effect, so it was submitted, that EML should bear the onus.
The Solicitor-General, who appeared for EML, referred first to the nature of the judicial determination which the Tribunal is required to make. He emphasised that the Tribunal is not to determine the correctness of EML’s decision on the material which was then available to it, but instead to embark upon a full hearing de novo, with neither party being confined to the material which was before EML, or otherwise available, at the time of the original assessment. The submission was that in this context the burden of proof should lie on the party who makes the affirmative case, rather than the party who denies that case.[5]
[5] The Commonwealth v Muratore (1978) 141 CLR 296 at 302-3.

The Solicitor-General submitted that the effect of s 35B(1) is that, subject to the requirement for 13 weeks notice under s 35B(6), a worker’s entitlement to weekly payments ceases by force of law upon satisfaction of two conditions precedent: the passage of 130 weeks and the making of a partial/non‑permanent assessment. This means that the continuation of weekly payments past 130 weeks (putting to one side the notice period) is contingent upon the Corporation making a total/permanent assessment. When such a total/permanent assessment is made, the effect of s 35B(2) is to create a new entitlement.
Thus, so the submission ran, given that it is Mr Martin who asserts that a new entitlement has come into existence because a total/permanent assessment of his work capacity should have been made, he is the party asserting the affirmative case and accordingly he should bear the onus.
The Onus of Proof and Workers Compensation Legislation Generally
The general principle in litigation is that the party asserting an affirmative case has the onus of establishing that case (“he who asserts must prove”[6]). This has the consequence in civil proceedings that it is for plaintiffs to prove all the facts which are an essential part of their cause of action, including proving a negative proposition if such a proposition is an essential part of their case.
[6] Ibid at 303.
In the context of workers compensation legislation, the application of these principles may mean that a worker will have the onus of proof on some issues, and the compensating authority the onus on other issues. Thus, in Phillips v The Commonwealth[7] Kitto, Taylor and Owen JJ held:
[T]he application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee’s right to compensation under an antecedently existing determination by reason of a material change of circumstances.[8]
(Emphasis added)
[7] (1964) 110 CLR 347.
[8] Ibid at 350.
Phillips concerned a claim under a provision in the Commonwealth Employees Compensation Act 1930-59 (Cth). However, the principle that it is for claimants to establish the necessary facts entitling them to compensation, but for compensating authorities to establish the facts entitling them to terminate a previously recognised entitlement by reason of a material change of circumstances, has been reflected in later decisions of the High Court. In J & H Timbers Pty Ltd v Nelson[9] the majority held that in a claim for compensation for partial incapacity for work, the onus of proving the difference between the weekly amount which the worker would probably have been earning but for the injury, and the average weekly amount he is earning or is able to earn after the injury, rested upon the worker seeking the award, and not upon the employer opposing the application. On the other hand, in The Commonwealth v Muratore[10] it was held that under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), it was for the compensating authority which wished to cease paying compensation altogether, to prove that the worker was capable of earning in suitable employment a weekly amount which was at least equal to his weekly earnings at the time of injury. In the latter case, Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed) said:
Therefore the Commonwealth when it alleges that the employee is physically able to earn, in some suitable employment or business, a weekly amount which is not less than his weekly pay at the date of injury is alleging nothing relevantly different from an allegation that he has no physical incapacity for work producing an incapacity to earn those wages. The position would be no different if it were alleged that his degree of incapacity for work had diminished so that his compensation should be reduced. In both situations the Commonwealth is, or would be, alleging that the circumstances of the employee had changed; and the onus lies upon the party alleging the change of circumstances to prove it. The position is quite different if there has been no previous finding of partial incapacity with a consequent assessment of the compensation payable. It is established that the employee then bears the onus of proving the partial incapacity for work and its reflection in the degree of his loss of ability to earn …[11]
(Citation omitted) (Emphasis added)
It can be seen that in each of Phillips and Muratore, the High Court considered that when a compensating authority asserts a change of circumstances resulting in the cessation altogether of a worker’s entitlement, or a reduction in the amount of an accepted entitlement, it is for the compensating authority, on judicial review, to prove that change of circumstances.
[9] (1972) 126 CLR 625.
[10] (1978) 141 CLR 296.
[11] Ibid at 301-2.
The Tribunal’s Function
Before examining the nature of the decision made by EML in Mr Martin’s case, it is appropriate to refer to the nature of a judicial determination of a dispute by the Tribunal.
A person with a direct interest in a “reviewable decision” may lodge a notice of dispute with the Registrar to the Tribunal (s 90(1)). “Reviewable decisions” are defined in s 89A and, relevantly for present purposes, include a decision “on a claim for compensation” (subs (1)(a)) and a decision to vary, suspend or discontinue weekly payments (subs (1)(c)). The WRCA requires a compensating authority, on receiving a copy of a notice of dispute, to reconsider the decision and inform the Registrar of the outcome of that reconsideration (s 91). If the compensating authority confirms the decision, the Registrar must refer the dispute for conciliation (s 91A). If the conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator must refer the dispute to the Tribunal for judicial determination (s 92D). In the normal course, the dispute which will be so referred will be the dispute as originally notified by the claimant worker. However, s 88DA provides that the Tribunal may, with the consent of all parties to the proceedings, enlarge the scope of the proceedings to include questions which are not presently at issue in the proceedings.
The Tribunal will normally be constituted of a single presidential member for the purposes of the judicial determination but it is possible for the dispute to be referred to the Full Bench for hearing and determination (s 94A).
This Court has previously held that the hearing of a dispute referred into the Tribunal for judicial determination is a hearing de novo: Kairns v WorkCover Corporation[12] and WorkCover Corporation v Davey.[13] This follows from a number of features of the proceedings, including the fact that the Tribunal is to make a judicial determination of the dispute (s 92D); the Tribunal’s power to take evidence and to compel the attendance of a person, or production of documents, for that purpose (ss 84A-84D); the requirement that the Tribunal act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 85); and the requirement in s 94C that the Tribunal decide the dispute without regard to decisions taken in earlier proceedings. The amendments made by the 2008 Amendment do not make this characterisation of the Tribunal’s role inappropriate.
[12] [2004] SASC 352 at [37], [78]; (2004) 90 SASR 81 at 93, 102.
[13] [2011] SASC 66 at [63]; (2011) 110 SASR 173 at 191.
The Tribunal is accordingly required to consider afresh the matters raised by the notice of dispute. This has a number of consequences. It means that the issue before the Tribunal is not the correctness or otherwise of a compensating authority’s decision; a compensating authority may raise issues about a worker’s entitlement to compensation which were conceded or, at least not in issue, at the time it made the disputed decision;[14] the Tribunal may have regard to evidence which has become available only since the original decision was made; and that the Tribunal is to make a judicial determination of the existence or otherwise of the entitlement asserted by the worker or the compensating authority, as the case may be.
[14] Kairns v WorkCover Corporation [2004] SASC 352; (2004) 90 SASR 81.
In these circumstances I agree that the referred question is not to be answered on the basis that EML is in the position of defending its decision. Instead what is required is a determination of who it is who is asserting the affirmative case in the proceedings. This turns on the statutory provisions providing for Mr Martin’s entitlement to compensation in the present context and, to a lesser extent, on Mr Martin’s articulation of the dispute which was later referred for determination by the Tribunal.
The Assessement of “No Current Work Capacity”
The expressions “current work capacity” and “no current work capacity” are defined in s 3(1) of the WRCA:
current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that the worker is not able to return to his or her employment at the time of the occurrence of the disability but is able to return to work in suitable employment;
no current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the disability or in suitable employment;
Each of these definitions uses the expression “suitable employment”. That expression is also defined in s 3(1):
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a)     the nature of the worker's incapacity and previous employment;
(b)     the worker's age, education, skills and work experience;
(c)     the worker's place of residence;
(d)     medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e)     if any rehabilitation programs are being provided to or for the worker;
(f)    the worker's rehabilitation and return to work plan, if any.
Accordingly, an assessment under s 35B(1)(a) that a worker has no current work capacity requires a conclusion that, by reason of the compensable disability, the worker is unable presently to return to work, whether in his or her usual employment or in other work for which the worker is currently suited, and whether or not that work is available, but having regard to matters personal to the worker including his or her place of residence and the attempts which have been made to rehabilitate the worker.
In my opinion, none of these matters indicates that it would be natural for the ultimate burden of proof to be on one party rather than the other. It could be said that the fact that some matters are personal to workers, such as their age, education, skills and work experience, suggests that the worker should at least have an evidential onus. However, in the context of an assessment occurring after income maintenance has been paid for some 130 weeks, after the medical and other assessments which will no doubt have been made at the request of the compensating authority under ss 53 and 108 of the WRCA, and after the attempts at rehabilitation and return to work of the injured worker contemplated by the WRCA, it is to be expected that a compensating authority will have garnered a considerable amount of material bearing on these topics. Further, the flexible procedures available to the Tribunal as to the manner and sequence in which it receives evidence[15] suggest that the matters relevant to the determination of a dispute concerning a worker’s work capacity arising from an assessment under s 35B(1) have no bearing on the location of the legal burden of proof.
[15] Cf Simpson Ltd v Arcipreste (1989) 53 SASR 9 at 13-4, 23.
Consideration
In my opinion, the submission of the Solicitor‑General that the effect of s 35B is to bring to an end a worker’s existing entitlement to weekly payments, but to allow for the creation of a new entitlement should not be accepted. Such a construction is not supported by a consideration of Div 4 of Pt 4 of WRCA as a whole, and, in my opinion, involves some artificiality.
Instead of providing for a cessation of entitlements to weekly payments and then the means by which a wholly new entitlement may be created, ss 35-35C should be understood as specifying both circumstances in which a worker’s entitlement will cease, and other circumstances in which the entitlement will continue. This is seen most clearly in the case of the worker who, before the end of the third entitlement period, had been compensated on the basis of partial incapacity only (which of course is not Mr Martin’s case).
By s 35A(3)(b) a partially incapacitated worker is entitled, during the third entitlement period, to weekly payments at the rate of 80 per cent of the difference between the worker’s notional weekly earnings and the worker’s designated weekly earnings. Section 35B(1) applies to such a worker and, having regard to the fact that the worker has a partial incapacity only, it will be unusual for a total/permanent assessment to be made at the end of the third entitlement period. Further still, s 35B(4) refers only to workers who were receiving weekly payments under s 35A(3)(a), ie, workers receiving weekly payments on the basis of total incapacity. On its face, therefore, s 35B is likely to have the effect that the entitlement of the partially incapacitated worker to weekly payments of income maintenance will cease at the end of the third entitlement period.
However, s 35B(1) is made subject to the other provisions of the WRCA. These include s 35C, which provides (relevantly):
(1)Subject to this Act, a worker who is, or has been, entitled to weekly payments under section 35A(3)(b) or 35B, may apply to the Corporation in accordance with this section for a determination that the worker's entitlement to weekly payments under this Division does not cease at the end of the third entitlement period under section 35A or at the expiry of an entitlement under section 35B (as the case may be).
(2)The Corporation may determine that the worker's entitlement to weekly payments under this Division does not cease as contemplated by subsection (1) if the Corporation is satisfied that the worker is in employment and that because of the compensable disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings.
…
(4)If the Corporation makes a determination under subsection (2), subject to this Division, the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's current weekly earnings.
(5)     The entitlement to weekly payments under subsection (4) continues until—
(a)     the Corporation ceases to be satisfied as to the matters specified in subsection (2); or
(b)     the worker otherwise ceases to be entitled to weekly payments (including by virtue of the operation of section 36).
(Emphasis added)
It can be seen that s 35C(1) allows a worker to apply to the Corporation for a determination that the worker’s entitlement “does not cease” at the end of the third entitlement period, and that subs (2) contemplates that the Corporation may determine, in specified circumstances, that the worker’s entitlement “does not cease”. In that event the worker is entitled to weekly payments at the rate of 80 per cent of the difference between the worker’s notional weekly earnings and the worker’s current weekly earnings (subs (3)).
The express statements in s 35C(1) and (2) that the worker’s entitlement “does not cease” are inconsistent with a cessation of entitlement, on the one hand, followed by the immediate creation of a new entitlement, on the other. I see no reason why those words should not be given their plain meaning, ie, that the worker’s entitlement does not end. If the worker’s entitlement does not cease, then, unless otherwise terminated in accordance with the WRCA, the entitlement continues.
In my opinion, s 35B reflects the same scheme or structure, albeit not so clearly, in relation to the worker whose incapacity is total and of indefinite duration. Subsection (1) does provide that the entitlement “ceases” at the end of the third entitlement period. However, the provision must be read as a whole. The cessation of entitlement is made contingent upon a condition precedent, namely, the absence of a total/permanent assessment of the worker’s incapacity. If such an assessment is made, the worker’s entitlement does not cease and, unless terminated in accordance with other provisions of the WRCA, it continues.
Section 35B(2) does commence with the words “if a worker qualifies under an assessment under subsection (1)”. It could be said that the reference to a worker “qualifying” for an entitlement is suggestive of the creation of a new entitlement. However, I do not consider that s 35B(2) should be understood in this way. The opening clause is equally capable of being understood as a reference to a worker’s qualifying for a continuance of payments. Further, I consider that s 35B(2) is directed, not to the establishment of an entitlement at all (whether new or continued), but to the quantification of the rate of weekly payment to those workers who will be continuing to receive payments. It should be understood as a counterpart to ss 35A(1), (2) and (3) and 35C(4), which also quantify an entitlement established by other provisions in the WRCA.
One question which may arise is whether the cessation of entitlement to which s 35B(1) refers is of a final and conclusive kind, or a cessation for the time being only. On one view, the requirement for periodic review in subs (3) may apply to all cases in which an assessment under s 35B(1) is made, whether or not the outcome of that review results in the continuation or cessation of weekly payments. This may suggest that subs (3) contemplates that an entitlement may be revived (for example, if a worker’s condition deteriorates). In turn this may suggest that the cessation of entitlement to which s 35B(1) refers is a cessation for the time being only. On the other hand, it may be significant that s 35B(1) speaks of an entitlement ceasing, rather than of weekly payments not being payable during a specified period which is the terminology used in s 35(2) and (3).
If a cessation under s 35B(1) is for the time being only, then it would appear that there may be at least two kinds of assessment under s 35B(3): one on the periodic review of the worker who is receiving weekly payments under subss (1) and (2); and another on the periodic review of the worker who did not qualify originally for continued weekly payments. Disputes arising from such assessments may, in the former case, involve the compensating authority having the onus of proof, and in the latter case, the worker.
It is not necessary to determine these issues for the purposes of the resolution of the referred question.
A number of submissions at the hearing were directed to the effect of s 35B(4)-(7). Although those provisions are important in the practical operation of s 35B, I do not think that they are of particular assistance in the construction of the section for present purposes. In my opinion, subss (4)-(7) should be understood as a form of protection to a worker, ie, by ameliorating the possible harsh consequences which may follow if subs (1) stood alone. Subsections (4)-(7) provide that protection in two ways. First, a compensating authority may not discontinue weekly payments of income maintenance to a worker who was receiving payments on the basis of total incapacity under s 35A(3) without making the assessment contemplated by s 35B(1). Were it otherwise, a compensating authority could simply refrain from making the assessment contemplated by subs (1) and rely on the absence of that assessment as indicating that, by force of law, the worker’s entitlement had ceased.

Secondly, the Corporation must give the worker who was receiving weekly payments on the basis of total incapacity at least 13 weeks notice in writing of the proposed discontinuance. It is reasonable to suppose that by requiring notice to be given, the legislature sought to minimise the hardship which a cessation of weekly payments without forewarning could have on workers who are dependent on those payments for their livelihood.[16]
[16] Cf Mitsubishi Motors Australia Ltd v Sosa (Unreported, Supreme Court of South Australia, Full Court, King CJ, Duggan and Nyland JJ, 8 June 1995, Jdgt No S5084).
Section 35B(6) provides that the Corporation must not “discontinue” weekly payments and speaks of notice in writing of the proposed “discontinuance” of those payments. It does not use the word “ceases” which appears in subs (1). I do not regard this difference as significant for present purposes. It is understandable that the legislature would speak of the discontinuance of weekly payments to a worker whose entitlement has ceased, or will cease.
The rejection of the first step in the Solicitor‑General’s argument does not have the consequence that EML has the relevant burden of proof. A number of other considerations are pertinent.
On any view, s 35B(1) is directed to the issue of a worker’s underlying entitlement to compensation after the lapse of a specified period. It can be understood as indicating that even though a worker had previously had an accepted entitlement, the continuation of that entitlement is conditional, not on continuing incapacity generally, but on the incapacity being of a particular kind and duration. Put slightly differently, s 35B(1) could be said to establish a presumptive position, ie, that in all cases the entitlement will cease unless the worker is totally and permanently incapacitated.
It could also be said that s 35B(1) is not relevantly different from a provision to the effect that at the end of the third entitlement period, a worker’s entitlement to income maintenance continues if, and only if, the worker has no current work capacity and is likely to continue indefinitely to lack such a capacity. If s 35B(1) was expressed in that way, it could be more natural to regard it as raising an issue of entitlement on which the worker has the onus of proof. As the High Court decisions in Phillips, J & H Timbers and Muratore indicate, generally it is workers who have the onus of proof on matters of underlying entitlement, as opposed to matters of cessation or reduction of an existing and acknowledged entitlement.
The force of these considerations is not dependent upon a conclusion that the effect of s 35B is to end one entitlement and to allow for the creation of a new and subsequent entitlement.
On the other hand, s 35B(1) applies when a compensating authority was, immediately before the end of the third entitlement period, making weekly payments to a worker on the basis that the worker had no current work capacity. As was pointed out during submissions, the making of payments on the basis of total incapacity under s 35A(3)(a) does not necessarily mean that the worker was totally incapacitated. It may reflect a previously mistaken assessment, or a worker’s capacity may have been gradually increasing.
However, it is reasonable to construe s 35B on the basis that the legislature contemplated that compensating authorities will not make weekly payments to workers on a basis to which they are not entitled. It is open to compensating authorities to take action under s 36(2)(b) during the third entitlement period to reduce a worker’s weekly payments if they consider that instead of having no current work capacity, the worker does have some such capacity. The concepts of “current work capacity” and “no current work capacity” apply as much during the third entitlement period as they do at its expiry. Thus the usual case in which s 35B(1) will operate will be one in which the worker has previously been assessed as having no current work capacity.
In the present case, the materials accompanying the referred question indicate that it was not until the assessment under s 35B(1) that EML determined that Mr Martin did have a current work capacity. As seen in the passages from EML’s letter of 29 June 2010 quoted earlier in these reasons, EML indicated that while Mr Martin had been receiving weekly payments on the basis of no current work capacity, it had now determined that he did have a current work capacity. In effect, EML considered that some change in its assessment of Mr Martin’s capacity was appropriate. The terms of Mr Martin’s notice of dispute indicate that he raised a direct challenge to that assessment. That is to say, he was not asserting that, despite EML’s assessment, he was still entitled on other grounds to a continuance of weekly payments. The passages from Phillips and Muratore quoted earlier in these reasons suggest that in these circumstances, it is EML as the party asserting the change which gives rise to the dispute, which has the onus of proof.
Related to this consideration is the fact that under s 35B(1) it is a compensating authority’s own assessment which is the matter on which the worker’s continued entitlement to weekly payments turns. A compensating authority does not rely simply on the lapse of time or on some other factor, external to both the worker and itself, on which the WRCA operates by force of law. Its own assessment is integral to the circumstances upon which it relies for its determination that the WRCA operates to bring about the cessation of entitlement.
To my mind, this is another factor which points to the compensating authority having the onus of proof.
Further still, it is to be expected that in the proper discharge of its function in making the assessment, the compensating authority will have collected and appraised a range of material relevant to its assessment. That being so, it is reasonable to require it, at least to the extent to which it wishes to rely on the same material, to establish on the judicial review, the circumstance upon which it relies for the changed assessment.
The considerations just mentioned are applicable in the case of determinations by a compensating authority under s 35B(1)(a). It may be said that those considerations are not applicable in the case of an assessment under subs (1)(b) that the worker’s current working capacity is not likely to continue indefinitely. Such an assessment does not necessarily imply any change to a previous assessment. That is because an acceptance for the purposes of s 35A(3)(a) that the worker has no current work capacity may indicate very little about the likely duration of that incapacity. Thus, it could be said that the onus of proof may vary according to whether the compensating authority relies upon subs (1)(a) or subs (1)(b) of s 35B.
This possibility cannot be gainsaid, but I do not think that it informs the location of the burden of proof in those cases arising under subs (1)(a). It illustrates only that the identification of the location of the onus requires a close analysis of the issue in dispute in a given case. In some cases the issue may arise under subpar (a); in others, under subpar (b); in others, under both subpars (a) and (b); and in others the issue may be whether the worker has received payments for an aggregate period of 104 or 130 weeks.
In any event, it is by no means obvious that the location of the burden of proof will be different in disputes concerning subpars (a) and (b). In particular, in those cases in which a compensating authority relies upon both sub-pars (a) and (b) it is reasonable to suppose that the burden of proof in relation to both issues will rest upon the one party.
One final consideration is this. In the usual case of a disputed discontinuance of weekly payments under s 36(1)(b) on the ground that a worker has ceased to be incapacitated, and in the usual case of a disputed reduction of weekly payments under s 36(2)(b) on the ground that there has been a reduction in the extent of the incapacity, it is the compensating authority which has the onus of proof. This is the effect of Phillips and Muratore, and is the position adopted in the Tribunal. See, for example, Royal Adelaide Hospital v Withers;[17] WorkCover Corporation v Toohey.[18] There would be some incongruity if, in a judicial determination occurring before the expiry of the third entitlement period, the compensating authority has the onus, but, in a judicial determination of the same issue after the expiry of the third entitlement period, the worker has the onus.
[17] [1999] SAWCT 132.
[18] [2001] SAWCT 53 at [27].
Conclusion
The issues raised by the referred question are not easy and there are considerations which point in each direction. I am persuaded by the consideration that EML, by the determination of 29 June 2010, effectively asserted that a change in the extent of Mr Martin’s incapacity had occurred with the effect that his entitlement to income maintenance had ceased. I consider that in those circumstances, this Court should apply the principle recognised in the High Court authorities of Phillips, J & H Timbers and Muratore and hold that it is EML which has the burden of proof.
Accordingly, I would answer the substituted question referred to this Court by saying that it is Employers Mutual Ltd which has the burden of proving that Mr Martin has no current work capacity.