McLennan v Roads and Maritime Services - [2016] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McLennan v Roads and Maritime Services [2016] NSWWCCPD 59
APPELLANT:	Trevor McLennan
RESPONDENT:	Roads and Maritime Services
FIRST INSURER:	GIO General Ltd
SECOND INSURER:	Treasury Managed Fund
FILE NUMBER:	A1-1953/16
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	9 August 2016 (amended 12 August 2016)
DATE OF APPEAL DECISION:	7 December 2016
SUBJECT MATTER OF DECISION:	Cessation of compensation at retirement age; operation of s 52 of the Workers Compensation Act 1987 where incapacity is due to injuries received before and after 30 June 1985; application of Royal North Shore Hospital v Rizk (unreported, NSW Court of Appeal, 23 August 1995); apportionment of liability; s 22 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
First Insurer:	Kemp & Co Lawyers
Second Insurer:	Turks Legal
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 9 August 2016 is revoked. 2. The respondent is ordered to continue to make weekly payments of compensation to Mr McLennan on and after 21 January 2012.

INTRODUCTION

This appeal concerns the termination of weekly payments on retiring age and the application of s 52 of the Workers Compensation Act 1987 (the 1987 Act), amended by the Workers Compensation Legislation Amendment Act 2012. Section 52 does not apply to injuries sustained prior to 30 June 1985 (s 52(4)).
The worker suffered injuries prior to and subsequent to 30 June 1985. An award entered in the worker’s favour in 2006 apportioned liability to two insurers on risk. The insurer on risk for injuries sustained after 30 June 1985 ceased making payments of weekly compensation upon the worker reaching retirement age in accordance with s 52.
An application seeking the restoration of payments failed. The worker appealed. The appeal is successful for the reasons below.

BACKGROUND

On 12 October 1980, Mr Trevor McLennan, the appellant worker, suffered a back injury in the course of his employment with the respondent employer, Roads and Maritime Services. The insurer on risk at the time of this injury was GIO General Ltd (GIO).
Mr McLennan suffered further injury to his back in the course of his employment over several dates: 24 October 1989, 21 July 1998, 7 February 2001, 25 November 2002, and 15 October 2003. The insurer on risk at the time of these injuries was the Treasury Managed Fund (TMF).
Mr McLennan was paid weekly payments of compensation until 26 January 2004.
On 1 June 2004 and 8 July 2004, Mr McLennan filed Applications to Resolve a Dispute seeking compensation against the respondent (8598/04 & 10442/04).
On 26 May 2006, Arbitrator Phillip Theobald issued a Certificate of Determination. He ordered that the respondent employer pay Mr McLennan weekly compensation benefits from 27 January 2004 to date and continuing, medical expenses and lump sum compensation. That compensation was apportioned at 40 per cent to GIO and 60 per cent to TMF.
On 1 February 2007, Mr McLennan’s employment was terminated.
On 21 January 2011, Mr McLennan turned 65 years of age and became eligible for an age pension under the Social Security Act 1991 (Cth).
On 21 January 2012, Mr McLennan reached retirement age in accordance with the definition in s 52(1) only one year after he became eligible for an age pension. On the same day, TMF terminated payments of weekly compensation in an amount equal to 60 per cent of the compensation ordered by Arbitrator Theobald on 26 May 2006.
GIO continued to pay weekly compensation in a sum equal to 40 per cent of the award. GIO accepted that its liability was unaffected because it indemnified the employer in respect of injuries received before 30 June 1985 and therefore s 52 had no effect on its liability (s 52(4)).
On 18 April 2016, Mr McLennan filed in the Commission a further Application to Resolve a Dispute (2953/16). He sought an order that TMF reinstate the weekly payments of compensation from 21 January 2012.
On 29 June 2016, the matter proceeded to conciliation/arbitration proceedings before Arbitrator Edwards following which the matter was reserved.
On 9 August 2016, the Arbitrator issued a Certificate of Determination declining Mr McLennan’s application for a declaration that the respondent in the interests of TMF reinstate weekly payments of compensation from 21 January 2012. That determination was amended on 12 August 2016, to correct a typographical error in the Statement of Reasons attached to the Certificate of Determination. Nothing turns on that correction.
Mr McLennan appeals the Arbitrator’s determination.
On 8 November 2016, Kemp & Co Lawyers advised the Commission that it acts for AAI Ltd t/as GIO. It confirmed that GIO was not aggrieved by the Arbitrator’s determination and therefore did not propose to lodge a Notice of Opposition to the appeal. No opposition was filed.

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as to the quantum of compensation in issue on appeal have been satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

LEGISLATIVE PROVISIONS

The relevant statutory provisions are extracted below.
Section 22 of the 1987 Act relevantly provides:
“22   Compensation to be apportioned where more than one injury
(1)     If:
(a)the death or incapacity of a worker, or
(b)a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c)a liability under Division 3 of Part 3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2)     Liability to pay compensation under this Act includes:
(a)the liability of an employer (including an employer who is a self-insurer), and
(b)the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c)a liability in respect of a claim under Division 6 of Part 4, and
(d)in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.
(3)     Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.
...
(5)     The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether:
(a) liability to pay compensation under this Act should be apportioned under this section, or
(b) any such liability should be apportioned under this section in respect of different injuries.
...
(8)     This section applies to any liability arising before or after the commencement of this Act.”
Section 22A of the 1987 Act relevantly provides:
“22A Further provisions concerning apportionment of liability under section 22
(1) The apportionment of liability under section 22 is:
…
(b)in the case of the apportionment of liability between insurers of the same employer—to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.
…
(9) The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.”
Section 52 of the 1987 Act relevantly provides:
“52   Termination of weekly payments on retiring age
(cf former s 60A)
(1)    In this section:
retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.
(2)    If a person:
(a)receives an injury before reaching the retiring age—a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age, or
…
(3)     This section has effect notwithstanding anything to the contrary in this Division.
…”

THE ARBITRATOR’S REASONS

With the parties’ agreement, the Arbitrator identified the issue for his determination in the following terms (at [18]):
“Does the apportionment of liability of TFM [sic, TMF] to make weekly payment of compensation to the applicant cease on the first anniversary of the date on which the applicant reaches retiring age pursuant to s 52(2)(a) of the 1987 Act?”
The Arbitrator identified the relevant facts and briefly summarised counsel’s submissions.
The Arbitrator referred to Royal North Shore Hospital v Rizk (unreported, NSW Court of Appeal, Mahoney, Clarke and Meagher JJA, 23 August 1995) (Rizk), an unreported decision of the Court of Appeal. He noted that Clarke JA (with whom Mahoney and Meagher JJA agreed) held, on similar facts to the instant case, that s 52(2)(a) did not apply where the relevant incapacity was contributed to by injuries both pre and post 1985.
The Arbitrator considered the apportionment provisions in ss 22 and 22A of the 1987 Act and the relevant authorities concerning the operation of those provisions.
The Arbitrator proceeded on the assumption that the findings of Arbitrator Theobald concerned a series of frank injuries and did not involve the application of the disease provisions. Although not expressly stated, he also proceeded on the assumption that the pleaded injuries both before and after 1985 resulted in a single incapacity.
Arbitrator Edwards found that, on the facts of the instant case, the findings in Rizk could be distinguished. That was because in Rizk questions of apportionment of liability did not arise. In the instant matter the Arbitrator noted that in the proceedings before Arbitrator Theobald he apportioned employer liability to the two insurers on risk; to GIO in the proportion of 40 per cent (in respect of the injury on 12 May 1980) and to TMF in the proportion of 60 per cent (in respect of the injuries post 30 June 1985).
As a matter of statutory construction the Arbitrator accepted the submission from Mr Barnes (counsel for TMF) that legislation is to be read according to the plain ordinary and natural meaning of its words: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 and Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27.
The Arbitrator’s conclusions are succinctly dealt with at [69]–[73] of the Certificate of Determination and are extracted below:
“69. In my view, the plain ordinary and natural meaning of the words in s 52(2)(a) and the legislative intention is that payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age.
70. The wording of sub-section 4 is clear and unambiguous that s 52 does not apply to injuries received by a worker before 30 June 1985 that has [sic] resulted in capacity [sic] for work.
71. Section 52(2)(a), in my view, must apply because Mr McLennan received injuries after 30 June 1985 resulting in partially [sic] incapacity apportioned at the ratio 60 per cent to TMF for those injuries. Liability for those injuries having been clearly identified by the arbitrator and the degree of their contribution to Mr McLennan’s partial incapacity for work as a result of those injuries.
72. I do not think s 52 could be interpreted in any other manner otherwise, if I accepted Mr Perry’s submission, liability would be vested in an insurer who came on risk after 30 June 1985.
73. I find that TMF’s liability to make weekly payments of compensation for injuries received after 30 June 1985 ceased upon the first anniversary on [sic] the date on which Mr McLennan reached retiring age, as prescribed by the Social Security Act 1991 of the Commonwealth, in accordance with the provisions of s 52(2)(a) of the 1987 Act.”

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred in law in:
(a) failing to correctly apply the provisions of s 52 of the 1987 Act with regard to injuries occurring before and after 1 July 1985 in accordance with the decision of the NSW Supreme Court, Court of Appeal in Rizk;
(b) concluding that the decision in Rizk did not operate to compel a result that TMF was obliged to reinstate payments of compensation to Mr McLennan;
(c) determining that the application of s 22 of the 1987 Act by the Commission as constituted by Arbitrator Theobald had the effect of excluding the operation of the decision in Rizk, and
(d) impliedly accepting that Mr McLennan suffered a single incapacity resulting from more than one injury and that one of those injuries occurring prior to 30 June 1985, the Arbitrator further erred in concluding that s 52 of the 1987 Act had application.

SUBMISSIONS

The appellant’s submissions

By reason of the dispute between the respondent’s two insurers GIO and TMF concerning their respective liability to make weekly payments of compensation to Mr McLennan, a determination was made by the Arbitrator Theobald on 26 May 2006 apportioning liability between the two insurers.
In his Statement of Reasons, Arbitrator Theobald found that Mr McLennan was partially incapacitated for employment. Accordingly, Arbitrator Theobald found that this was a case concerning a single incapacity with more than one cause.
The decision of the Court of Appeal in Rizk simply depended upon the fact of there being injuries before and after 30 June 1985 which resulted in incapacity. In such a case the Court held that s 52 does not apply. In the instant case the apportionment of 40 per cent to GIO and 60 per cent to the TMF reinforces the finding that Mr McLennan’s incapacity is a single incapacity arising from injuries received both before and after 30 June 1985. Accordingly, the Arbitrator erred in law in failing to find that the operation of s 52 was excluded.
In relation to the second and third pleaded errors, the Arbitrator erred in finding that the effect of the apportionment under s 22 relieved the respondent/employer from its obligation to make weekly payments of compensation to the applicant by reason of there having been an apportionment between the two insurers involved.
It is submitted that the Arbitrator erred in law in failing to find that the respondent employer had a continuing obligation to make weekly payments of compensation notwithstanding the fact that there had been apportionment of liability between the employer’s insurers.
Section 9 of the 1987 Act places the primary obligation to pay compensation upon the worker’s employer at the time of injury. In circumstances where there is only one relevant employer/respondent, any apportionment pursuant to s 22 does not absolve the respondent insurer of liability (Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716 (Baltica)).
In relation to the fourth pleaded error, the appellant relies on the submission set out above.

The respondent’s submissions

The respondent in the interest of TMF submitted that Arbitrator Theobald specifically apportioned liability between the two insurers. In arriving at the apportionment pursuant to s 22 of the 1987 Act, the Arbitrator gave specific effect to the finding of separate and distinct injuries in the absence of any disease process being found.
TMF submitted:
“The relevant provisions of s 52 of the Act (termination of weekly payments [on] retirement age) deals specifically within the context of payment ‘in respect of an injury’ and the reference to payment of weekly compensation in respect of any resulting periods of incapacity for work relate specifically to s 52(2)(a) but do not have effect with regards to the specific context as outlined in s 52(4).”
Arbitrator Edwards’ reasons at [5] and [8] identify that he proceeded on the basis that Mr McLennan did not suffer from a disease injury within the meaning of s 4 of the 1987 Act and, whilst not expressly sated, it may be inferred that he proceeded on the basis that there was a single incapacity for work as a result of the separate and distinct injuries. Therefore it is submitted that the Arbitrator correctly determined that the process of multiple frank incidents had been identified as opposed to any disease provisions which may have provided greater if not total liability in the last insurer on risk as at the date of the final injury on 15 October 2003.
In Rizk Justice Clarke made specific reference to injuries received prior to 30 June 1985 and to the resulting incapacity. There was no requirement to look at injuries arising after 30 June 1985 which caused incapacity, or indeed to review any notion of apportionment pursuant to s 22 as there was at all times a single insurer on risk for payments of compensation to the worker.
Arbitrator Edwards correctly applied and identified the need for the application of s 22 and s 22A to give effect to the earlier decision of Arbitrator Theobald apportioning liability between the two insurers.
The respondent submitted:
“Once again noting earlier decisions such as Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, also the decision of the NSW Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716, and Rail Services Australia v Dimovski [2004] NSWCA 267 [Dimovski] and in such cases clearly identifies the requirement concerning an enquiry into the incapacity and the connection between the incapacity and the number of injuries which as a matter of ordinary common sense and experience in accordance with the authorities is to be the guiding force.”
In Rizk the Court of Appeal was concerned with injuries that resulted before and after 30 June 1985 however the appellant submitted:
“What is conveniently overlooked by the appellant is the fact that Arbitrator Edwards dealt with the requirements of the test as introduced by s 22(1A) where at paragraph 53 of his Reasons finds that that section finds an enquiry whether the incapacity was so connected with a number of injuries that as a matter of ordinary common sense and experience, ‘it should be regarded as having resulted partly from or any of them’ (Dimovski at [36]). The Arbitrator then goes on to find that if such apportionment is exercised it will need to be carried out in accordance with the requirements of s 22(1) …”

It is submitted therefore that Arbitrator Edwards correctly identified “distinguishing characteristics” between the instant case and the facts in Rizk.
The Arbitrator clearly delineated the apportionment of liability in respect of the injury received prior to 30 June 1985 to GIO and the liability in respect of those injuries occurring after 30 June 1985 to TMF.
As a matter of statutory construction the Arbitrator correctly applied s 52 of the Act.
TMF submitted:
“In the matter, the subject of this appeal, the ‘mischief’ which is sought to be remedied by the legislation is to draw a line in the sand in respect of the payments of weekly compensation upon a worker reaching the relevant retirement age. Effect must therefore be clearly given to the provisions of s 52(4) … as a legislative remedy to the requirement for an insurer to continue payments of weekly compensation to an injured worker beyond a delineated retirement age and in the case of the Act, retirement age plus 1 year.”
It is the clear intention of s 22 not to absolve the employer of liability. The liability of the employer respondent is assumed by the insurer on risk namely GIO “who bear the continuance of payments in the apportionment of 40% as defined by Arbitrator Theobald in the Certificate of Determination of 26 May 2006”.
The Arbitrator correctly applied the provisions of s 52(2)(a) of the 1987 Act and in so doing “gives further clear effect to the intention of Parliament in its desire to classify payments for incapacity in relation to injuries before and after 30 June 1985 and the ensuing liability therefrom”.
Therefore, it is submitted, the appeal must fail.

DISCUSSION AND FINDINGS

The facts in Rizk are distinctly similar to those in the instant case.
In the initial proceedings in the Compensation Court of New South Wales (Rizk No 1), Herkes CCJ found that the worker suffered a series of injuries before and after 30 June 1985. He entered an award in the worker’s favour for the payment of weekly compensation from 26 March 1990 and continuing.
When the worker turned 61 on 4 January 1994, the employer’s insurer ceased payments of compensation on the basis that the worker was no longer entitled to weekly compensation benefits pursuant to s 52. The worker brought proceedings by way of a Notice of Motion seeking an order for the continuance of the compensation ordered in Rizk No 1. The Motion was heard by her Honour Judge Truss (Rizk No 2).
Granting the Motion Truss CCJ held that the award in Rizk No 1 was based on findings of multiple injuries occurring both before and after 30 June 1985. Her Honour further held that the employer was not entitled to decline to make payments pursuant to the award, when the worker turned 61, in that absence of a further determination of the court.
An appeal to the Court of Appeal from the decision of Truss CCJ was dismissed. Clarke JA (with whom Mahoney and Meagher JJA agreed) noted that the worker alleged that the injuries causative of her ultimate back disability occurred on 10 February 1981, 28 February 1985, 1 April 1987, 16 May 1987, 10 January 1990 and 4 March 1990.
Clarke JA held (at page 3):
“In my opinion s 52 is plain in its terms. Where a worker establishes that he or she has suffered incapacity as a result of an injury received before 30 June 1985 then s 52(2)(a), which effectively terminates the weekly payments once the worker reaches (in the case of a woman) sixty one, has no application. Where the incapacity results solely from injuries received after 30 June 1985 then, of course, once the worker has reached the relevant age the weekly payments cease. In this case the respondent’s incapacity has resulted from, inter alia, injuries received prior to 30 June 1985 and s 52(4) applies. Consequently the appellant was in error in discontinuing the weekly payments and her Honour was correct in ordering that it reinstate them and continue to pay them in the future.”
Clarke JA further held that his conclusion accorded with general principles of common law as stated by Dixon CJ in Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 267.
Save for TMF’s submission with respect to the apportionment issue, the decision in Rizk is on all fours with the facts in this case and is binding authority on the Commission.
What then is the effect of the apportionment that clearly delineated injuries that occurred both before and after 30 June 1985?
The answer to that question lies in part upon an appreciation of the distinction between liability for compensation pursuant to the combined provisions of ss 4, 9 and 33 of the 1987 Act and the provisions concerning the question of apportionment of liability in s 22 and s 22A.
In Baltica Clarke JA held (at [732], Priestley JA and Hunter AJA agreeing) that:
“if the worker satisfies the test in a case where there are a number of work injuries and apportionment is sought, the trial judge is then to apply the s 22 test and that test will be satisfied if the incapacity resulted partially from one injury (presumably the injury which led to the finding under s 33) and partly from another or other injuries.”
In other words there is a two stage process when apportionment is sought; firstly the initial determination of liability and subsequently an apportionment of liability. Baltica was followed in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 at [75].
The risk insured against, under the polices of insurance in the present case, was a liability of the employer to pay compensation to the worker in respect of injuries sustained “arising out of or in the course of employment” (s 4). Pursuant to s 9 a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act. If incapacity results from an injury, the compensation payable by the employer to the worker shall include a weekly payment during the incapacity (s 33 of the 1987 Act). Mr Thompson has established that these provisions are satisfied by reason of the findings of Arbitrator Theobald. Thus the liability to pay weekly compensation was established and the employer ordered to pay compensation.
The policies of insurance entered into by the employer with GIO and TMF merely created an indemnity in favour of the employer against any liability arising under the legislation. They did not and cannot affect the primary liability of the employer to pay compensation once that worker has satisfied ss 4, 9 and 33.
Based on the binding authority in Rizk Mr McLennan was entitled to continue to receive weekly compensation after reaching retirement age, from the employer, because his incapacity was due to injuries sustained before and after 30 June 1985. The employer’s indemnity arrangements with its insurers are immaterial to that primary liability. For that reason s 52 did not operate to bring the entitlement to compensation under the award to an end upon the worker reaching retirement age.
I reject the submission that only 40 per cent of the award should remain payable by GIO. No reasoned submission or authority was advanced in support of that submission. For the reasons identified above the submission is contrary to binding authority.
Further even if TMF considered that it may be entitled to terminate payments pursuant to s 52, Mr McLennan had the benefit of an award of the Commission in his favour. It was not open to TMF to determine, of its own volition, that it was free to decline further indemnity merely because it had formed the view it was open to do so.
Section 55 of the 1987 Act provided a mechanism for the review of an award in respect of weekly payments of compensation. Section 55 was repealed by the Workers Compensation Legislation Amendment Act 2012. However the repeal is subject to the transitional provisions in Sch 6 Pt 19H, Div 2 of the 1987 Act. Section 55 continues to apply where a worker was a recipient of weekly payments of compensation immediately before 1 October 2012: Allen v Road and Maritime Services [2015] NSWWCCPD 39 at [3].
It is agreed that at all relevant times Mr McLennan was a recipient of weekly payments of compensation immediately before 1 October 2012.
In Powell v Metropolitan Coal Co Ltd [1966] WCR 213 his Honour Judge Wall held any change in the criteria for the payment of benefits under the legislation was a circumstance amendable to review under s 55.
The appropriate course for TMF, rather than merely suspending payments of its own volition, was to seek an order from the Commission varying the terms upon which the apportionment of the liability of the employer was to be carried forward.
For these reasons the Arbitrator’s conclusion that because TMF’s liability was in respect of injuries sustained after 30 June 1985 it could terminate payments upon the worker reaching retirement age was wrong.

CONCLUSION

The worker has the benefit of an award of weekly compensation in his favour. He is entitled to ongoing benefits pursuant to the award notwithstanding that he has reached retirement age. That is because his incapacity is attributable to injuries sustained before and after 30 June 1985.
It is immaterial that the apportionment orders of the Arbitrator apportioned a percentage of the liability to an insurer on risk for injuries sustained after 30 June 1985. Once it was accepted that there was a single period of incapacity which resulted from injuries both pre and post 30 June 1985, s 52 did not operate to terminate the employer’s liability upon the worker reaching retirement age.

ORDERS

The Arbitrator’s Certificate of Determination dated 9 August 2016 is revoked.
The respondent is ordered to continue to make weekly payments of compensation to Mr McLennan on and after 21 January 2012.

Judge Keating
President

7 December 2016