Paterson v Paterson Panel Workz Pty Limited
[2018] NSWWCCPD 27
•6 July 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Paterson v Paterson Panel Workz Pty Limited [2018] NSWWCCPD 27 | |
| APPELLANT: | Timothy Ewan Paterson | |
| RESPONDENT: | Paterson Panel Workz Pty Limited | |
| INSURER: | GIO General Limited | |
| FILE NUMBER: | A1-10/18 | |
| ARBITRATOR: | Ms C McDonald | |
| DATE OF ARBITRATOR’S DECISION: | 26 March 2018 | |
| DATE OF APPEAL DECISION: | 6 July 2018 | |
| SUBJECT MATTER OF DECISION: | Benefits payable to workers who reside outside the Commonwealth; s 53 of the Workers Compensation Act 1987; meaning of “award”; application of transitional provision cl 17 of Sch 8 to the Workers Compensation Regulation 2016; application of Lee v Bunnings Group Limited [2013] NSWWCCPD 54 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Lamrocks |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination of 26 March 2018 is confirmed. | |
INTRODUCTION
This appeal concerns the application of s 53 of the Workers Compensation Act 1987 (the 1987 Act) and the jurisdiction of the Commission to make an order under that section after the expiration of the second entitlement period for payments of weekly compensation. In particular, it concerns whether the Commission has jurisdiction to make a declaration with respect to the permanence of a worker’s incapacity and his entitlement to continue to receive weekly payments of compensation.
BACKGROUND
On 18 October 2013, Timothy Paterson, the worker, suffered an injury to his left ankle and foot in the course of his employment with the respondent, Paterson Panel Workz Pty Limited when he landed awkwardly and fell after jumping from the back of a ute. He suffered consequential conditions in his right knee and left hip.
Mr Paterson was paid weekly compensation for more than 205 weeks, in respect of the injury sustained on 18 October 2013.
On 13 December 2017, Mr Paterson moved from Australia to the Philippines to live.
On 2 January 2018, Mr Paterson filed an Application to Resolve a Dispute (the Application), seeking medical expenses and lump sum compensation in respect of the injury on 18 October 2013. He claimed that he “[i]njured left ankle and left lower leg and secondary injury to the right knee and left hip caused by altered gait.” He claimed that the injury occurred while “working in the back of a utility motor vehicle and he jumped from the back of the vehicle to the ground, slipped and fell awkwardly and damaged his left ankle and foot.”
On 19 January 2018, Mr Paterson’s legal representative wrote to the respondent’s legal representative advising that Mr Paterson will seek to remain on ongoing weekly compensation while he resides outside of Australia pursuant to s 53 of the 1987 Act.
On 1 February 2018, the respondent’s insurer GIO General Limited (GIO) issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied further entitlement to weekly compensation on the basis that Mr Paterson had not obtained the requisite certificate or determination pursuant to s 53 of the 1987 Act, that his incapacity for work was likely to be of a permanent nature. It stated:
“Section 53 provides that without this certification or determination your entitlement to weekly payments ceases upon leaving the country.
You did not obtain the necessary certification or determination and for that reason you are no longer entitled to weekly benefits.
…
You have not complied with section 53 of the 1987 Act as a consequence of which your entitlement to weekly payments ceased at the time you left Australia.
This means that we will continue paying you weekly compensation benefits up to 21 March 2018 as long as you give us medical evidence that you are still incapacitated and unfit for work, however all weekly compensation benefits will stop on 21 March 2018.”
On 9 February 2018, Mr Paterson filed an Amended Application to Resolve a Dispute. The Application was amended to claim weekly compensation from 13 December 2017, in respect of the injury on 18 October 2013.
On 5 March 2018, the matter was listed for a conciliation/arbitration hearing. There was no dispute regarding permanency of the incapacity or level of incapacity. The dispute before the then Senior Arbitrator was confined to the question of liability of the insurer to pay weekly compensation. It was accepted that the second entitlement period pursuant to s 37 of the 1987 Act had expired.
The Senior Arbitrator directed the parties to provide written submissions on the application of s 53 of the 1987 Act and the Commission’s jurisdiction to make an order under that section after the expiration of the second entitlement period. Further submissions were received from the parties pursuant to the direction.
On 6 March 2018, the Senior Arbitrator issued an extempore decision finding that Mr Paterson suffered consequential conditions in his right knee and left hip as a result of the injury on 18 October 2013.
The Senior Arbitrator found that Mr Paterson was not a worker receiving or entitled to receive a weekly payment of compensation under an award. She held that the Commission had no jurisdiction to enter an award in favour of Mr Paterson and therefore s 53 had no application. For those reasons, the Senior Arbitrator declined to grant the relief sought.
On 26 March 2018, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. I decline to make a declaration with respect to the permanence of Mr Paterson’s incapacity.
A brief statement is attached setting out the Commission’s reasons for the determination.”
Mr Paterson appeals the Senior Arbitrator’s decision of 26 March 2018. He does not seek to disturb the Senior Arbitrator’s determination regarding consequential conditions resulting from injury on 18 October 2013.
Mr Paterson was referred to an Approved Medical Specialist, Dr David Crocker, for assessment of injuries sustained arising from the incident on 18 October 2013. On 19 April 2018, Dr Crocker issued a Medical Assessment Certificate in respect of a whole person impairment of 5% for injuries sustained to Mr Paterson’s left ankle, scarring, and consequential conditions to the left hip and right knee arising from the incident on 18 October 2013. On 24 May 2018, a Certificate of Determination was issued finding that Mr Paterson had no entitlement to lump sum compensation resulting from the injury on 18 October 2013.
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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
NEW EVIDENCE
Mr Paterson seeks leave to tender as new evidence on appeal two emails from the respondent’s solicitor dated 4 and 5 April 2018 addressed to Mr Paterson’s solicitor.
The email of 4 April 2018 is in the following terms:
“Hi Steve
As discussed just now I am instructed by the GIO that work capacity decision has not been made on this claim
Regards
Miriam Browne”
The email of 5 April 2018 is in the following terms:
“Hi Steve
Further to my e-mail yesterday I am concerned now that GIO and I may have been at cross purposes to some extent.
It seems to me that whilst they may not have conducted a formal work capacity assessment as such, your client would have been transitioned to the new weekly payment regime on 1 September 2015.
Clause 17, Schedule 8 to the 2016 Regulations provides
17 Weekly payments amendments to apply where work capacity assessment not conducted
(1) On and from 1 September 2015, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any period of incapacity occurring on and after that date) to an existing recipient of weekly payments in respect of whom a work capacity assessment has not been conducted before that date.
(2) For the purposes of the application under this clause of the weekly payments amendments to an existing recipient of weekly payments who is in receipt of weekly payments of compensation immediately before 1 September 2015, the worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.
I am trying to get a list of payments to see exactly what happened when but wonder if the above would constitute a deemed WCD of sorts.
Let me get back to you further once I have the list.
I wanted to get in touch ASAP because I didn't want you to act on any incorrect information.
Regards
Miriam Browne”
Mr Paterson’s submissions
Mr Paterson submits that the emails establish the reason for the continuation of payments beyond 130 weeks. He submits that this evidence was not available at the time of the hearing, having self-evidently come into existence since the determination.
Mr Paterson also submits that this material ought to be received so that the Presidential member can consider the issues based on a correct factual footing (not previously available to the Senior Arbitrator).
The respondent’s submissions
The respondent relies on Practice Direction No 6 and the decision in Box v APK Engineering Pty Ltd.[1]
[1] [2009] NSWWCCPD 149.
The respondent accepts that the evidence was not available at the time of the arbitration. However, it submits that the material has no probative value to the issues to be determined. Further, it submits that no substantial injustice could arise if the material was rejected as it cannot, and does not, change the effect of s 53 of the 1987 Act.
Consideration
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give “new evidence” on appeal. In CHEP Australia Ltd v Strickland[2] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.
…
30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[3]
[2] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[3] Strickland, [27], [30]-[31].
It is not disputed that the fresh evidence sought to be admitted came into existence after the Senior Arbitrator’s determination. That satisfies the first of the threshold questions discussed in Strickland.
The issues raised on this appeal turn in part on the Commission’s jurisdiction to enter an award in favour of Mr Paterson. The determination of that issue will involve a consideration of whether the respondent made a work capacity decision in relation to Mr Paterson’s entitlements. The fresh evidence goes to that question.
I accept Mr Paterson’s submission that the material ought to be received so that the Presidential member can consider the issues based on a correct factual footing. If the Commission accepts that a work capacity decision had been made by the insurer, then the Commission may have jurisdiction to order the relief sought. Therefore, there would be a substantial injustice if the evidence was not admitted.
For these reasons, I grant leave for the fresh evidence to be admitted on the appeal.
EVIDENCE
In evidence is the supplementary statement of Mr Paterson, dated 18 January 2018. In that statement Mr Paterson states that he left Australia on 13 December 2017 to live with his fiancée in the Philippines. At that time, he was subject to a temporary visa which was due to expire on 22 March 2018 and he had applied for a permanent residency visa. He stated that he had “no current intention to return to Australia”.
In evidence are WorkCover Medical Certificates issued by Dr S Ghazali, Mr Paterson’s general practitioner, certifying him unfit for work until 24 February 2018.
THE ARBITRAL PROCEEDINGS
The Senior Arbitrator conveniently summarised the submissions that were put to her on the application of s 53 of the 1987 Act. The submissions were in these terms.
Mr Malouf of counsel, on behalf of the respondent, submitted:
(a) s 53 of the 1987 Act only applies when a worker is receiving weekly compensation under an award but no award has been made in favour of Mr Paterson;
(b) Mr Paterson has been paid weekly compensation for more than 205 weeks so that his entitlement falls to be determined under s 38 of the 1987 Act;
(c) because the Commission does not have jurisdiction after the second entitlement period, it does not have jurisdiction to make an award, and
(d) in any event, Mr Paterson’s permanent impairment is less than 20% and he “has not satisfied any potential jurisdiction of the Commission for the purpose of determining weekly benefits.”
Mr Paterson’s counsel, Mr Stockley, sought a determination that Ms Paterson’s incapacity is likely to be of a permanent nature so that the Commission could order the continuation of his benefits under s 53 of the 1987 Act. He submitted:
(a) the company did not raise any issue about the permanence of Mr Paterson’s incapacity in its s 74 notice;
(b) Mr Paterson accepts that the issue must be decided even though it was raised belatedly;
(c) the section only applies to workers who are on an award of weekly compensation made by the Compensation Court, and
(d) the Commission does not have power under the 1987 and 1998 Acts to make an award and s 53 of the 1987 Act was not amended in 2012 when “the legislature reduced the decision making power of the Commission and at the same time vested it in the Insurer.”
The Application proceeded on the basis that Mr Paterson left Australia for the Philippines on 13 December 2017 on a temporary visa which expired on 22 March 2018. He applied for a permanent residency visa. If the visa is granted he does not intend to return to Australia.
THE SENIOR ARBITRATOR’S REASONS
The s 74 notice issued by the respondent did not place the permanence of Mr Paterson’s injury in dispute, nor did it dispute that he was unable to return to work as a panel beater and spray painter. The only reason for ceasing payments to Mr Paterson was that he no longer lived in Australia.
The Senior Arbitrator described Mr Stockley’s submission, that s 53 of the 1987 Act has no application because the Commission does not have power to make awards, as “untenable”. She noted that several sections of the 1998 Act refer to the making of awards, most notably s 355 which prohibits the making of an award by an Arbitrator without first using his or her best endeavours to bring the parties to a dispute to a settlement acceptable to them.
The Senior Arbitrator held that decisions of the Commission are awards. She found that the argument that s 53 of the 1987 Act only applies to workers subject to awards made by the Compensation Court must fail. She concluded that if the Commission made an order for weekly compensation it would be an award within the meaning of s 53 of the 1987 Act.
The substance of s 53 of the 1987 Act has not changed since the decision in Hickey v Ram Roofing Pty Ltd.[4] In that matter, Neilson J held that the section only applied to a worker who was in receipt of compensation under an award.
[4] (1997) 15 NSWCCR 616 (Hickey).
The Senior Arbitrator held:
“A provision which no longer exists permitted a claim for weekly compensation to be made and an award entered even though the worker was in receipt of voluntary payments. The Application for Determination was amended to add a claim for weekly compensation.”[5]
[5] Paterson v Paterson Panel Workz Pty Limited [2018] NSWWCC 83 (Reasons), [14].
The Senior Arbitrator held that s 53 of the 1987 Act only applies to a worker receiving or entitled to receive payments under an award.[6] On its face, it therefore does not apply to Mr Paterson. The Senior Arbitrator considered relevant authorities including Merriman v Anaco Holdings Pty Ltd,[7] Mthethwa v Buena Vista (Australia) Pty Ltd[8] and Allens Arthur Robinson Corp Advisory Pty Ltd v Weavers.[9]
[6] Reasons, [15].
[7] [2006] NSWWCCPD 5 (Merriman).
[8] [2006] NSWWCCPD 18 (Mthethwa).
[9] [2011] NSWWCCPD 71 (Weavers).
The Senior Arbitrator held that all of those decisions were made before the WorkersCompensation Legislation Amendment Act2012 and related to a period where the Commission had jurisdiction with respect to all disputes concerning weekly compensation.
The Senior Arbitrator concluded that Mr Paterson had been in receipt of compensation for more than 130 weeks and was therefore outside the second entitlement period (s 37 of the 1987 Act). She held that had the insurer raised a dispute about Mr Paterson’s entitlement to weekly compensation, she would not have had jurisdiction over such a dispute.[10] The Senior Arbitrator concluded she did not have jurisdiction to make an award in favour of Mr Paterson so that s 53 of the 1987 Act would apply.
[10] Citing Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee).
The Senior Arbitrator concluded:
“Because Mr Paterson is not in receipt of payments under an award, s 53 does not apply and there is no jurisdiction to make a determination as to the permanence of his injury or to refer the question to an Approved Medical Specialist. Any entitlement to payments depends on the insurer’s management of the claim.”[11]
[11] Reasons, [20].
The Senior Arbitrator further held that if she had jurisdiction to determine the question of permanence she would have determined it in favour of Mr Paterson consistently with her decision of 6 March 2018.
For the foregoing reasons, the Senior Arbitrator declined to make a determination with respect to the permanence of Mr Paterson’s incapacity.
GROUNDS OF APPEAL
Mr Paterson alleges that the Senior Arbitrator erred:
(a) in determining that a favourable determination in respect of weekly payments, whether by operation of law or decision of an insurer, could not constitute an award within the meaning of s 53 of the 1987 Act;
(b) in the alternative, in failing to consider whether a favourable determination in respect of weekly payments, whether by operation of law or decision of an insurer, could constitute an award within the meaning of s 53 of the 1987 Act;
(c) in the alternative, in finding that the insurer had not raised a dispute about Mr Paterson’s entitlements to weekly compensation, and
(d) in the alternative, in finding that the Commission had no jurisdiction to resolve a dispute about weekly compensation.
THE LEGISLATION
Legislation
Section 38 of the 1987 Act provides:
“38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note: An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(8) A worker's entitlement to compensation under this section may be reassessed at any time.”
Section 43 of the 1987 Act provides:
“43 Work capacity decisions by insurers
(1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:
(a)a decision about a worker’s current work capacity,
(b)a decision about what constitutes suitable employment for a worker,
(c)a decision about the amount an injured worker is able to earn in suitable employment,
(d)a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e)a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f)any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions:
(a)a decision to dispute liability for weekly payments of compensation,
(b)a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.”
Section 53 of the 1987 Act provides:
“(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the insurer may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.”
Clause 17 of Sch 8 to the Workers Compensation Regulation 2016 (the 2016 Regulation) (hereafter referred to as cl 17 of Sch 8) provides:
“(1) On and from 1 September 2015, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any period of incapacity occurring on and after that date) to an existing recipient of weekly payments in respect of whom a work capacity assessment has not been conducted before that date.
(2) For the purposes of the application under this clause of the weekly payments amendments to an existing recipient of weekly payments who is in receipt of weekly payments of compensation immediately before 1 September 2015, the worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.”
The legislative history with respect to payments to workers who cease to reside in the State
Mr Stockley’s submissions conveniently provide a legislative history to the provisions relating to the payment of compensation to persons residing outside of the state, including the legislative predecessors to the provisions.
The earliest legislative predecessor to s 53 appears to be that contained in cl 18 of Sch 1 to the Workmen’s Compensation Act 1916, which applied to “a workman receiving a weekly payment” who “ceases to reside in the State”.
The next iteration of the provision was found in s 54 of the Workers’ Compensation Act 1926 (the 1926 Act) which provided that:
“If a worker receiving weekly payment ceases to reside in the Commonwealth of Australia, he shall thereupon cease to be entitled to receive any weekly payment, unless a medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature.”
Jurisdiction in respect of the 1926 Act resided in the Workers Compensation Commission until 1984 when it was replaced by the Compensation Court of NSW.
The 1987 Act, as enacted, contained s 53, which provided that:
“If a worker receiving, or entitled to receive a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless medical referee or medical panel certifies, or the Compensation Court determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
It was this enactment which introduced the qualification of an “award” to the provision.
The introduction of the 1987 Act was preceded by the creation of, and the vesting of jurisdiction in, the Compensation Court of New South Wales following the passing of the Compensation Court Act 1984.
This enactment made reference to awards, eg s 23 in respect of enforcement of an award. A limited statutory definition is to be found in Pt IV, which contains the provisions permitting appeals from the Court. For the purposes of that Part, the expression “award” is defined by s 31 to include “order, decision, determination, ruling and direction”.
From 1 January 2002 when jurisdiction was conferred upon the Workers Compensation Commission, s 53 was amended to substitute the term “approved medical specialist” for “medical referee or medical panel” and “the Commission” for “Compensation Court”.
SUBMISSIONS
Mr Paterson’s submissions
Grounds one and two
While the Senior Arbitrator did not appear to accept that the making of a payment during the third entitlement period could constitute an award as contemplated by s 53 of the 1987 Act, she did not say so in terms.
The submission to the Senior Arbitrator was not that the Commission lacked jurisdiction to enter awards simpliciter. Before the Senior Arbitrator the submission put on behalf of Mr Paterson was that a favourable determination by an insurer pursuant to s 38(2) of the 1987 Act to assess him as having no current work capacity (a work capacity decision) and an entitlement to payments constituted an award in his favour because it was assessed by an entity in which that power resided; that is, the insurer. That is because, so Mr Paterson submits, the making of an award is not within the exclusive domain of the Commission, especially in circumstances where s 43(3) of the 1987 Act withdraws “work capacity decisions” from the jurisdiction of the Commission.
The preceding analysis of the legislative history does not suggest any inconsistency of application or definition of the term “award” other than in the most general of terms. It is not a term of art and is sufficiently broad to include a positive decision (actual or deemed) regarding payment of weekly compensation.
This, so it is submitted, brought Mr Paterson within the purview of s 53 of the 1987 Act. A formal determination or certification, which no one but the Commission or an Approved Medical Specialist has power to make, was therefore required to allow him to receive those payments outside Australia.
Mr Paterson submits that the proposition is strengthened by the contents of the emails on 4 and 5 April 2018 from the respondent’s solicitor. It submits that the emails confirm that the payments to Mr Paterson had continued by operation of the deeming effect of cl 17 of Sch 8.
To the extent that the Senior Arbitrator did not consider the question, she appeared to have concluded that the decision of Judge Neilson in Hickey disposed of the issue. However, that case did not involve the application of the 1987 Act as it existed after the 2012 amendments. At the time that Hickey was decided, the power to determine an entitlement to compensation resided exclusively in the Compensation Court. If its ability to exercise power pursuant to s 53 of the 1987 Act was subject to a finding of jurisdictional fact, namely the existence of an award, the absence of that fact was one which the Court could itself remedy by making the requisite award. That is what occurred in Hickey.
Ground three
Mr Paterson submits, in the alternative, that the Senior Arbitrator erred in finding that the insurer had not raised a dispute about his entitlement to weekly compensation. He submits that there can be no doubt that the insurer raised such a dispute. This is evident from the terms of the s 74 notice which records, inter alia, “you are no longer entitled to weekly benefits”.
Ground four
Mr Paterson submits, again in the alternative, that the Senior Arbitrator erred in finding that the Commission had no jurisdiction to resolve a dispute about weekly compensation.
The Senior Arbitrator did not embark on a determination of a dispute about entitlement to weekly compensation because she did not consider that such a dispute existed (ground three).
The Senior Arbitrator’s finding of “no jurisdiction” referred to my decision in Lee. Mr Paterson submits that that decision is distinct on its facts. In that matter, there had been no assessment of work capacity by the insurer pursuant to s 38 of the 1987 Act.
Here it is submitted the insurer is taken to have made a decision that Mr Paterson has no work capacity by operation of cl 17 of Sch 8. Therefore, so it is submitted, the Senior Arbitrator had jurisdiction pursuant to s 38 of the 1987 Act which could “not violate the prohibition contained in s 43(3)”.
In the present proceedings, the liability dispute was Mr Paterson’s alleged failure to obtain certification pursuant to s 53 of the 1987 Act. That was a dispute about liability and it was clearly within the jurisdiction of the Commission. Mr Paterson submits that if the Senior Arbitrator was correct in concluding that he was not being paid pursuant to an award, she ought to have made an award as sought, which would have satisfied the jurisdictional fact required to exercise power pursuant to s 53 of the 1987 Act.
Mr Paterson seeks to have the Senior Arbitrator’s determination set aside, substituting a determination that he is incapacitated as a result of his injury from 15 October 2013 which is likely to be of a permanent nature. In the alternative, he seeks an award of weekly payments from 13 December 2017.
The respondent’s submissions
The respondent submits that there are numerous components to s 53 of the 1987 Act. The first being that Ms Paterson is receiving or entitled to receive a weekly payment of compensation under an award. In this case, there is no award in favour of Mr Paterson. The respondent submits that Mr Paterson concedes as much, at least impliedly. That being the case, the relevant consideration is whether Mr Paterson is entitled to receive a weekly payment of compensation under an award.
Mr Paterson’s primary contention is that it is not only the Commission who can make awards and, thus, he may be entitled to receive a weekly payment of compensation under an award of some other type, ie not an award of the Commission.
The respondent accepts that the term “award” is not defined in the 1987 Act.
The Shorter Oxford Dictionary defines the noun “award” as:
“1. A sentence or decision after examination, esp. that of an arbitrator or umpire; the document embodying it.
2. That which is awarded or assigned, as payment, penalty, etc, …”
The above definition supports the idea that the Commission makes awards. It does not support the submission that an insurer may make an award. The 1987 Act makes various references to the term “award” in the context of the Commission’s power, including ss 108, 352, 353 and 355 of the 1987 Act.
Contrary to Mr Paterson’s submissions there is no reference in the 1987 Act to the ability of an insurer to make an “award”. Rather, in provisions such as s 43 of the 1987 Act, the legislation refers to “decisions” of an insurer. Therefore, the Senior Arbitrator’s finding (at [13]) identifying decisions of the Commission as awards was correct.
If s 53 of the 1987 Act was solely concerned with a worker who was entitled to weekly benefits, by whatever means, then the words “under an award” would not have been used. Those words must have work to do and the respondent submits that the jurisdiction of the Commission was and is a relevant factor in the application of s 53 of the 1987 Act.
It is not in dispute that Mr Paterson has exhausted his entitlement to weekly benefits under ss 36 and 37 of the 1987 Act as he has received over 205 weeks of weekly compensation. The Commission does not have jurisdiction to award weekly benefits beyond the periods provided for by ss 36 and 37 of the 1987 Act.[12] For these reasons, so it is submitted, the Commission has no jurisdiction to make an award for weekly benefits on the current claim.
[12] Citing Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 and Lee, cited with approval in Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 (Jaffarie).
Assuming that it is only the Commission who can make an award, where the Commission has no jurisdiction to make an award for weekly payments it can have no jurisdiction for determining incapacity for the purposes of s 53 of the 1987 Act.
Moreover, on Mr Paterson’s own evidence, he does not exceed 20% whole person impairment. Therefore, he cannot satisfy the threshold requirement for continuing payments under s 38 of the 1987 Act and does not satisfy any potential jurisdiction of the Commission for the purposes of determining continuing weekly benefits.
The respondent submits that Mr Paterson’s submissions do not “grapple with these arguments”. If it is accepted that the Commission has no power to make an award, then s 53 of the 1987 Act cannot apply to provide the relief contended for by Mr Paterson and therefore the appeal must fail.
Mr Paterson’s submissions in reply
The essential facts which give rise to the operation of s 53 of the 1987 Act are twofold. The first is that Mr Paterson ceased to reside in Australia and about that there is no controversy. The second is that Mr Paterson is receiving or entitled to receive a weekly payment of compensation under an award.
Unless both of these facts are established Mr Paterson ceases to be entitled to further weekly payments. The same facts give rise to the jurisdiction in the Commission or an Approved Medical Specialist to issue a declaration or certificate pursuant to s 53 of the 1987 Act.
In its s 74 notice the respondent asserted that Mr Paterson is a worker to whom s 53 of the 1987 Act applies. It was for that reason that it declined to make continuing weekly payments. Necessarily, it was asserting that he was a worker receiving, or entitled to receive, a weekly payment of compensation under an award.
Mr Paterson submits:
“In its submissions to the Workers Compensation Commission both at first instance and on appeal, [Mr Paterson] argues that [he] is not a worker to whom s 53 applies because he is not receiving [sic] entitled to receive a weekly payment of compensation under an award. One may therefore rhetorically ask, why was the respondent therefore refusing to make payment?”
Nevertheless, the respondent does refuse or decline to continue the weekly payments of compensation to which Mr Paterson would otherwise be entitled by operation of law. It is because of the respondent’s refusal to make weekly payments that Mr Paterson has sought an order from the Commission.
If Mr Paterson is a worker to whom s 53 of the 1987 Act applies, he seeks a certification pursuant to that section.
In the alternative, if Mr Paterson is a worker to whom s 53 of the 1987 Act does not apply, he seeks an order that the respondent make payment to him, the respondent having raised no issue as to entitlement, other than its misplaced reliance on s 53. The Commission is endowed with the requisite jurisdiction pursuant to s 105 of the 1998 Act.
Submissions concerning the operation of cl 17 of Sch 8 to the Workers Compensation Regulation 2016
The respondent’s submissions failed to traverse Mr Paterson’s submissions with respect to the operation of cl 17 of Sch 8 (ground 4). In the circumstances, I issued a Direction on 19 June 2018, directing the respondent to file further submissions in relation to that ground of appeal.
The respondent’s submissions
In response to the Direction the respondent makes the following submissions.
It is not disputed that no work capacity decision has been made.
It is disputed that any deeming outcome by operation of cl 17 of Sch 8 results in an award.
The appellant submits that Clause 17 of Sch 8 results in the precondition to assessment of entitlement, namely the deeming of a work capacity decision. The result of the deemed decision is that the worker had no current work capacity. Therefore, pursuant to s 38 of the 1987 Act, Mr Paterson was entitled to receive compensation beyond the second entitlement period.
If that be the case, the respondent maintains there cannot be an award that follows, and relies on its submissions concerning the meaning of “award”.
Additionally, so it is submitted, it remains the case that the Commission had no role to play in determining any award under which Mr Paterson may be entitled to receive weekly benefits. Any entitlement to weekly benefits was a matter for the insurer only. There was no award capable of being made by the Senior Arbitrator under which Mr Paterson would be paid weekly benefits.
The Commission’s jurisdiction with respect to work capacity decisions is limited by s 43 of the 1987 Act. There is nothing in the legislation, so it is submitted, that allows the Commission to make an award for weekly benefits in a situation such as the present. For that reason, the jurisdiction of the Commission under s 53 of the 1987 Act is not enlivened.
Mr Paterson’s submissions in reply
Mr Paterson elected not to lodge any submissions in reply.
CONSIDERATION
Grounds one and two
Mr Paterson accepts the Commission’s jurisdiction to enter “awards” when directing the payment of compensation benefits. The issue on appeal is whether the making of an “award” of compensation is within the exclusive domain of the Commission or whether it may extend to an insurer. That is, whether the making of payments after the second entitlement period could constitute an award as contemplated by s 53 of the 1987 Act, and therefore enliven the jurisdiction of the Commission or an Approved Medical Specialist to issue a determination or certification under s 53.
Although the term “award” is not defined in either the 1987 or the 1998 Act, the legislation makes numerous references to the term “award” in the context of the Commission’s power. The following provisions are some examples of the use of the term “award”:
(a) s 108 of the 1998 Act refers to the Commission making interim and final “awards” as the Commission thinks fit;
(b) ss 325 and 353 of the 1998 Act refer to a decision in respect of a dispute by the Commission constituted by an Arbitrator and Presidential Member. A decision includes an “award”;
(c) s 355 of the 1998 Act refers to the Commission constituted by an Arbitrator “not to make an award” in certain circumstances;
(d) s 65 of the 1987 Act prohibits the Commission from making an “award for permanent impairment compensation” in certain circumstances, and
(e) s 87E of the 1987 Act concerns the Commission’s powers to commute “an order or award of the Commission”.
There are numerous other examples that relate to the Commission’s power to order the payment of compensation as an “award”.
I do not accept Mr Paterson’s submission that a favourable determination by an insurer pursuant to s 38(2) of the 1987 Act concerning his current work capacity “constituted an award” in his favour, merely because it was an assessment by the entity in which the power resided to make that decision, namely, the insurer.
The only basis upon which that submission was put is that the legislative history “does not suggest any consistency of application or definition of the term ‘award’ other than in the most general of terms”. I do not accept that submission. Apart from the examples of the use of the term “award” referred to above, in reference to the current legislation, the term “award” was also consistently used in the 1926 Act and the Workers Compensation Rules 1926 to refer to orders directing the payment of compensation.[13]
[13] 1926 Act, ss 36, 53A, 62A; 1926 Rules, rr 24-26.
Further, for the following reasons, I do not accept the submission that the term “award” is not a term of art and sufficiently broad to include a “positive decision (actual or deemed)” regarding the payment of weekly compensation by an insurer. First, I have not been directed to any authority to support that proposition. Second, it was not a submission that was raised before the Senior Arbitrator and therefore there cannot be an error in failing to deal with it.[14] Third, whilst I accept that a “decision” of the Commission and an “award” of the Commission may mean the same thing in some circumstances, in reference to work capacity decisions, the language used is specific to “decisions by insurers”.[15] A decision by an insurer cannot be conflated with a decision or award of the Commission for the purpose of satisfying a jurisdictional fact necessary to invoke the Commission’s jurisdiction under s 53 of the 1987 Act. As the legislative history demonstrates, s 53 of the 1987 Act introduced the requirement that for an order under s 53 to be made by the Commission, the worker must be receiving or entitled to receive weekly payments of compensation “under an award”.
[14] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell).
[15] 1987 Act, ss 43,44BB, 44BA, 38.
As a matter of statutory construction, the task of construing a statute must begin with the text itself. The language which has actually been employed in the text of the legislation is the surest guide to the legislative intention.[16]
[16] Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
The text of the legislation is plain. It restricts the application of s 53 of the 1987 Act, to workers who cease to reside in Australia where the worker is receiving or entitled to receive a weekly payment of compensation under an award. Unlike previous iterations of s 53 of the 1987 Act, the text does not refer to a worker receiving weekly payments whether it be pursuant to an award or otherwise. It is specific to workers who receive a weekly payment pursuant to an award. There is no dispute in this case that Mr Paterson was not receiving or entitled to receive compensation pursuant to an award of the Commission. He was receiving voluntary payments of weekly benefits until they were suspended by the insurer due to a purported failure to comply with s 53 of the 1987 Act.
Further, it is an accepted canon of statutory construction that all words of a provision must have work to do. In Project Blue Sky[17] the High Court by majority held:
“… [a] court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [1905] HAC 11; 2 CLR 405, Griffith CJ cited R v Berchet [(1688) [1794] EngR 1806; 1 Show KB 106; 98 ER 480] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[18]
[17] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky)
[18] Project Blue Sky at [71] (footnotes omitted).
The use of the words in s 53 of the 1987 Act “under an award” must have meaning and must be given work to do. For the reasons above, “an award” under the 1987 Act or the 1998 Act invariably refers to the power of the Commission to make orders in respect of compensation benefits. It follows that the preferred construction of the words “under an award” in s 53 of the 1987 Act refers to the Commission’s power to make orders or “awards” with respect to compensation benefits. Contrary to Mr Paterson’s submission it does not extend to a decision of an insurer.
To accept Mr Paterson’s submission would be to impermissibly read words into s 53 of the 1987 Act so that the provision would apply:
“If a worker receiving, or entitled to receive, a weekly payment of compensation under an award [or a decision of an insurer (actual or deemed)] ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
In Taylor v The Owners - Strata Plan No 11564[19], the majority of the High Court considered the question of reading a statutory provision as if it contained additional words or omitted words. The majority said that such a task involves:
“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature.’”[20] (footnotes omitted)
[19] [2014] HCA 9 (Taylor).
[20] Taylor, [38].
Mr Paterson’s circumstances identify a lacuna or gap in the legislation with respect to orders for the payment of compensation overseas. That is because the legislation only permits the making of such orders by the Commission in circumstances where it has entered an award in respect of the worker’s entitlements. The legislation does not provide a remedy to enforce the payment of compensation overseas when the payments are being made voluntarily or pursuant to the deeming provision in cl 17 of Sch 8. That is a matter which the legislature may remedy in due course. However, Mr Paterson seeks to read words into s 53 of the 1987 Act to fill a gap disclosed in the legislation that would be “too much at variance with the language in fact used by the legislature” and is therefore not permitted.[21]
[21] Taylor, [38].
Further, I do not accept Mr Paterson’s submission that the proposition for which he contends was strengthened by the contents of the emails referred to at [20]-[21] above. The first email, on 4 April 2018, confirmed that the insurer had not made any work capacity decision with respect to Mr Paterson’s entitlements. In other words, no decision had actually been made by the insurer as to his entitlements under the legislation, if any.
The second email, dated 5 April 2018, again confirmed that no formal work capacity assessment had been undertaken and merely speculated that the reasons for the continuation of payments may have occurred as a result of the application of the transitional provisions, namely cl 17 of Sch 8. However, there is no evidence that that is what occurred. There is no evidence before the Commission identifying any decision concerning Mr Paterson’s ongoing weekly payments by the insurer other than the decision to suspend his benefits because of an alleged failure to comply with s 53 of the 1987 Act.
For these reasons, I reject the submission that the making of payments after the second entitlement period could constitute an award as contemplated by s 53 of the 1987 Act which brought him within the purview of that section.
Further, I do not accept Mr Paterson’s submission that to the extent that the Senior Arbitrator considered the question of the application of s 53 of the 1987 Act, she concluded that the decision of Judge Neilson in Hickey disposed of the issue.
As the respondent correctly submits, early authority including Mthethwa and Merriman were considered in Weavers where I held that the application of s 53 of the1987 Act is subject to the Commission’s jurisdiction. The Senior Arbitrator had regard to those authorities.[22] I do not accept that the Senior Arbitrator disposed of the issue by reference to Hickey. On the contrary, the Senior Arbitrator held that those cases were all decided before the Workers Compensation Legislation Amendment Act 2012 and applied legislation when the Commission had jurisdiction with respect to all disputes about weekly compensation. That is no longer the case, for reasons which I shall come to in dealing with ground four.
Ground three
[22] Reasons, [31]-[40].
I do not accept Mr Paterson’s alternative submission, namely that the Senior Arbitrator erred in finding that the insurer had not raised a dispute as to Mr Paterson’s entitlement to weekly compensation.
The Senior Arbitrator said:
“Mr Paterson has been in receipt of compensation for far more than 130 weeks and is therefore outside the second entitlement period. If the insurer had raised a dispute about to his entitlement to weekly compensation I would not have jurisdiction to resolve it. I do not have jurisdiction to make an award in his favour so that s 53 would apply.”[23]
[23] Reasons, [19].
Mr Paterson submits:
“There can be no doubt that the insurer did raise such a dispute. This is evident from the terms of the s 74 notice which records (inter alia)
‘you are no longer entitled to weekly benefits’”
The passage relied on by Mr Paterson was in connection with the insurer’s s 74 notice, which raised only one dispute, namely the suspension of payments of weekly benefits because of a purported failure to comply with s 53 of the 1987 Act. That was the disputed issue and the Senior Arbitrator dealt with it. There was no dispute that Mr Paterson was unable to undertake his pre-injury occupation as a panel beater and spray painter.
The Senior Arbitrator, relying on my decision in Lee, held that had there been a dispute about Mr Paterson’s entitlement to weekly compensation she would not have had jurisdiction to resolve it. That was correct.
It follows that ground three must fail.
Ground four
Mr Paterson sought to distinguish Lee on the basis that that decision was distinct on its facts. Mr Paterson submits that in Lee there had been no assessment of work capacity by the insurer pursuant to s 38 of the 1987 Act, whereas in this case, the insurer is taken to have made a decision that Mr Paterson had no work capacity by operation of cl 17 of Sch 8.
In Lee, I held that the Commission has very broad powers to hear and determine all matters arising under both the 1987 and 1998 Acts. However, the “exclusive jurisdiction” granted to the Commission, pursuant to s 105(1) of the 1998 Act, is qualified by the express prohibitions in ss 43(3) and 44(5) of the 1987 Act. Those provisions removed the Commission’s jurisdiction to determine any dispute about a work capacity decision of an insurer and prevent the Commission from making a decision in respect of a dispute before it that is inconsistent with a work capacity decision of an insurer (s 43(3) of the 1987 Act). I further held that it was clear from the unambiguous terms of s 38 of the 1987 Act that an entitlement to compensation under that section must be assessed by an insurer, not by the Commission. For these reasons, I reject Mr Paterson’s submission that the Commission is endowed with the requisite jurisdiction pursuant to s 105 of the 1998 Act, to make the orders sought.
The decision in Lee has recently been considered by the New South Wales Court of Appeal in Jaffarie with apparent approval.[24]
[24] Jaffarie, [31]-[40].
It is evident from the late evidence tendered by Mr Paterson that, as in Lee, no work capacity decision had been made by the insurer with respect to his entitlements. The respondent’s solicitor’s email of 4 April 2018 states:
"As discussed just now I am instructed by the GIO that work capacity decision has not been made on this claim.”
The email of 5 April 2018, from the respondent’s solicitor to Mr Paterson’s solicitor, referring to cl 17 of Sch 8 merely speculated as to the legal effect of the regulation on the circumstances of this case. Relevantly, the email stated:
“…I am trying to get a list of payments to see exactly what happened when but wonder if the above would constitute a deemed WCD of sorts.”
It is therefore apparent from the email exchanges between the solicitors that no work capacity decision had been made by the insurer at the time of Mr Paterson’s application, hence his purported reliance on cl 17 of Sch 8.
Mr Paterson submits that, notwithstanding the restrictions on the Commission’s jurisdiction to award compensation after the expiration of the second entitlement period, in the present circumstances the Commission has jurisdiction to make an award for weekly compensation under s 38 of the 1987 Act by operation of cl 17 of Sch 8. Thus, so it is submitted, a determination pursuant to s 38 of the 1987 Act “could not violate the prohibition contained in s 43(3)”. I do not accept that submission for the following reasons.
First, the operation of cl 17 of Sch 8 and whether there was a deemed work capacity decision arising from its operation was not a matter argued before the Senior Arbitrator. It is not open on appeal for Mr Paterson to argue that the Senior Arbitrator erred in not dealing with an argument never raised.[25] Therefore, the Senior Arbitrator cannot have erred by failing to address the application of cl 17 of Sch 8.
[25] Bell, [22], [30].
Second, cl 17 of Sch 8 is a transitional provision relating to the effect on existing recipients of weekly payments of compensation where no work capacity assessment had been undertaken. Clause 17 provides a “worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.” (emphasis added)
The effect of cl 17 of Sch 8 did not enliven the Commission’s jurisdiction to make an award under s 38 of the 1987 Act in favour of Mr Paterson. That is because in respect of workers with no current work capacity there is no entitlement to further weekly benefits after the expiration of the second entitlement period, unless the worker is assessed by the insurer as having no current work capacity and is likely to continue indefinitely to have no current work capacity.[26]
[26] 1987 Act, s 38(2).
The benefit of any deemed assessment by operation of cl 17 of Sch 8 is of limited duration. It can have application until a work capacity assessment is undertaken by the insurer. The deeming effect of the clause is not, contrary to Mr Paterson’s submission, the same as the satisfaction of the precondition to the assessment of entitlement under s 38(2) of the 1987 Act, by the Commission.[27] It does not enliven the Commission’s jurisdiction to enter an award under s 38 of the 1987 Act and in turn does not satisfy the jurisdictional fact required to exercise power pursuant to s 53 of the 1987 Act.
[27] Lee.
Even if I accept that the first limb of s 38(2) is satisfied by operation of cl 17 of Sch 8, that is, the insurer has been taken to have assessed Mr Paterson as having no current work capacity, I do not accept that the second limb of s 38(2) is satisfied. The insurer did not make any assessment (or determination as submitted by Mr Paterson) that Mr Paterson was likely to continue indefinitely to have no current work capacity.
In Lee I held that it was clear from the unambiguous terms of s 38 of the 1987 Act that an entitlement to compensation under the section must be assessed by the insurer, not by the Commission. In Jaffarie, Leeming JA (White and Macfarlan JJA agreeing) held that that statement was “entirely correct”.[28]
[28] Jaffarie, [39].
It follows that while there may be a factual distinction between the present matter and Lee, the outcome is the same, namely that the Commission is precluded from making an award because the preconditions to entering an award pursuant to s 38(2) of the 1987 Act have not been satisfied. That is because the insurer has not made a work capacity assessment that deals with both limbs of s 38(2), and therefore the Commission has no jurisdiction to enter an award until the insurer assesses Mr Paterson’s ongoing entitlements.
It follows that ground four must fail.
CONCLUSION
The Senior Arbitrator was correct to conclude that, because Mr Paterson was not a worker receiving or entitled to receive weekly payments of compensation under an award, s 53 of the 1987 Act had no application. The Senior Arbitrator was also correct to find that the Commission lacks jurisdiction, in the circumstances, to make an award for weekly payments after the second entitlement period.
The respondent’s s 74 notice of 1 February 2018 was misconceived. There was no obligation on Mr Paterson to comply with s 53 of the 1987 Act and there was no justification for terminating his entitlement to weekly benefits on that basis.
ORDERS
The Senior Arbitrator’s Certificate of Determination of 26 March 2018 is confirmed.
Judge Keating
President
6 July 2018
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