Mitsubishi Motors Australia Limited v Frank Sosa Worker's Rehabilitation and Compensation Corporation v Frank Sosa Nos. SCGRG 94/1609 and SCGRG 94/1610 Judgment No. 5084 Number of Pages 9 Workers' Compensation - [1995] SASC 5084

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1) DUGGAN(2) AND NYLAND(3) JJ

CWDS
Workers' compensation - Entitlement to and liability for compensation - weekly income maintenance - alleged availability of suitable employment - discontinuance of weekly payments - whether discontinuance authorized by Act - effect of 535 - no review pursuant to s38 - right to discontinue not automatic on loss of entitlement - prescribed procedures for discontinuance not followed - discontinuance not authorized. Workers Rehabilitation and Compensation Act
ss 35, 36 and 38. GMH v Workers' Rehabilitation and Compensation Corporation
(1991) 55 SASR 395, applied.

HRNG ADELAIDE, 11 April 1995 #DATE 8:6:1995 #ADD 4:9:1995

Counsel for appellant Mitsubishi: Mr R C White

Solicitors for appellant Mitsubishi: Fountain and Bonig

Counsel for appellant WRCC: Ms R A Layton QC with
Ms J Grundy

Solicitors for appellant WRCC: Thomsons

Counsel for respondent: Mr A P Durkin

Solicitors for respondent: Duncan And Hannon

ORDER
Appeal dismissed.

JUDGE1 KING CJ These are appeals on a question of law from a decision of the Workers Rehabilitation and Compensation Appeals Tribunal consisting of Judge J P McCusker.

2. The appellant, Mitsubishi, is an exempt employer under the WorkersRehabilitation and Compensation Act and therefore possesses all the powers of the Workers Rehabilitation and Compensation Corporation which are relevant to this case; Workers Rehabilitation and Compensation Acts63. The respondent sustained injury in his employment by Mitsubishi on 13 February, 1991. He was in receipt of weekly payments by way of income maintenance pursuant to s35 of the Act until they were discontinued pursuant to a decision made by the appellant on 15 January, 1993. He sought a review of the appellant's decision and the Review Office set aside the decision and determined that weekly payments should continue. This determination was upheld on appeal by Judge McCusker. There are two appeals to this Court, one by the exempt employer and the other by the Corporation.

3. Judge McCusker, affirming the view of the Review Officer held that weekly payments could be lawfully discontinued only if the discontinuance was authorized by s36 of the Act and that that section does not authorize discontinuance in the circumstances of the present case. Section 36, as it stood at the relevant time, is as follows:
    "36.(1) Subject to this Act, weekly payments to a worker
    who has suffered a compensable disability shall not be
    discontinued unless -
    (a) the worker consents to the discontinuance of weekly
    payments; or
    (b) the Corporation is satisfied, on the basis of a
    certificate of a recognised medical expert, that the worker
    has ceased to be incapacitated for work by the compensable
    disability;
    (c) the Corporation has, by notice in writing to a worker,
    required the worker to -
     (i) submit to an examination by a recognised medical
     expert nominated by the Corporation; or
     (ii) submit to the Corporation a certificate from a
     recognised medical expert certifying that the compensable
     disability continues,
    and the worker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mitsubishi Motors Australia Limited v Frank Sosa Worker's Rehabilitation and Compensation Corporation v Frank Sosa Nos. SCGRG 94/1609 and SCGRG 94/1610 Judgment No. 5084 Number of Pages 9 Workers' Compensation [1995] SASC 5084
Case: [1995] SASC 5084
Decision Date: 8 June 1995

CaseChat Overview and Summary

In the Full Court of the Supreme Court of South Australia, Mitsubishi Motors Australia Limited and the Workers' Rehabilitation and Compensation Corporation (WRCC) appealed against a decision of the Workers Rehabilitation and Compensation Appeals Tribunal, which had ordered the continuation of weekly payments to Frank Sosa, a worker who had been injured on the job. The key issue was whether the discontinuance of weekly payments to Sosa was authorized by the Workers Rehabilitation and Compensation Act. Specifically, the Court needed to determine if the availability of suitable employment for Sosa, as claimed by Mitsubishi, could serve as a basis for discontinuing his weekly payments, or if such discontinuance required adherence to the statutory procedures outlined in the Act.

The Court found that the availability of suitable employment did not, by itself, authorize the discontinuance of weekly payments. The Court emphasized that Section 36 of the Act explicitly outlines the conditions under which weekly payments can be discontinued, none of which were met in this case. The Court held that the procedures prescribed by the Act for discontinuing or reducing weekly payments must be followed, and that these procedures were not complied with by Mitsubishi. The Court also noted that the entitlement to weekly payments under Section 35 does not inherently authorize discontinuance or reduction of those payments. The reasoning from previous cases, such as GMH v Workers Rehabilitation and Compensation Corporation, was applied to reinforce that the statutory procedures for reviewing and adjusting weekly payments are meant to protect injured workers from arbitrary cessation of their livelihood.

The Court concluded that the discontinuance of weekly payments without following the prescribed procedures was not authorized by the Act. Therefore, the appeals by Mitsubishi and the WRCC were dismissed, affirming the Tribunal's decision to uphold the continuation of weekly payments to Frank Sosa.

Orders