Philoraj v Jobwire Australia Pty Ltd
[2023] VMC 11
•30 June 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER Division
Case No. N10434273
| NIRMALKUMAR JOHNSON PHILORAJ | Plaintiff |
| v | |
| JOBWIRE AUSTRALIA PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 03 – 04 April 2023, 24 & 29 May 2023 (final written submissions received 16 June 2023) |
DATE OF DECISION: | 30 June 2023 |
CASE MAY BE CITED AS: | Philoraj v Jobwire Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VMC 11 |
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WORKERS COMPENSATION - Weekly payments – Absence from Australia – Weekly payments ceased when injured worker departed Australia – Injured worker subsequently returned to live in Australia following absence of 18 months - ‘Ceases to reside’ – Whether ‘temporarily absent from Australia’ – Whether entitlement to weekly payments revives in the event of injured worker returning to live in Australia - Whether capacity for pre-injury employment - Workplace Injury Rehabilitation and Compensation Act 2013, ss 10, 175(1), 175(2), 175(3) – Interpretation of Legislation Act 1984, s 36(2A)(a).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr N Horner | Fittipaldi Injury Lawyers |
| For the Defendant | Mr B McKenzie | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
Mr Philoraj, the plaintiff, departed Australia on 3 April 2021 due to the expiry of his temporary study and work residence visa (TRV) issued by the Department of Home Affairs (the Department). He returned to India, his country of origin, and lived there for about 18 months. On 30 October 2022, he came back to live in Melbourne on an extended TRV.
At the time of his departure from Australia, Mr Philoraj was receiving weekly payments under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) following a workplace injury on 29 May 2020 (the injury).
Mr Philoraj brings a claim for weekly payments of compensation for the period of absence from Australia as well as for an additional brief period after he returned to Australia.
The primary dispute concerned the operation of s 175 of the Act. That section governs the entitlement to weekly payments of injured workers absent from Australia. Mr Philoraj’s capacity for pre-injury duties from the time of the departure from Australia was also in issue.
Mr Philoraj was the only witness to give oral evidence. All other materials including medical reports were tendered into evidence by agreement.
Matters Agreed or Not in Dispute
It is convenient to set out the evidence about which there was no dispute based on Mr Philoraj’s oral evidence and documents tendered into evidence by agreement.
Mr Philoraj, who is 28 years of age, was born in India. He is a single man with no children. His sole surviving parent lives in India. He has tertiary qualifications achieved in India including a bachelor degree of mechanical engineering. He is right-hand dominant.
Mr Philoraj first came to Melbourne in October 2019 on the TRV which had an expiry date of 5 April 2021.
On 21 May 2020, Mr Philoraj commenced employment as a production worker with the defendant, Jobwire Pty Ltd, a labour hire company (Jobwire). He was placed with a host employer, Steel Mains Pty Ltd, a manufacturer of steel pipes (Steel Mains).
10. The injury on 29 May 2020 occurred whilst Mr Philoraj was performing duties for Jobwire with Steel Mains. He suffered a severe crush and amputation injury of the left thumb. He was transported by ambulance to the Royal Melbourne Hospital where he was admitted and had surgery. The first surgery attempted to re-attach the severed thumb, however the graft failed. A second surgery on 12 June 2020 was performed to amputate the left thumb through the middle of the distal phalanx.
11. After discharge from hospital, Mr Philoraj was under the care of a local GP, Dr Kallab.
12. Mr Philoraj’s WorkCover claim for the injury was accepted for weekly payments and medical and like expenses.
13. On 25 June 2020, at the urging of Jobwire, Mr Philoraj attempted a return to work with Steel Mains, however he was unable to cope and that lasted only a few hours.
14. On 26 March 2021, Mr Philoraj informed the Agent by telephone of his intended departure to India on 3 April 2021 due to the imminent expiry of the TRV.
15. On 7 April 2021, Mr Philoraj emailed the Agent to confirm he had ‘reached home safely’ on 5 April 2020 and wrote: ‘…may I get my further treatment advice from the doctors those who are [sic] treated me there. please let me know as soon as possible. Because of my health condition I can't go for any job here immediately. So please help me by financially. …’
16. On 7 April 2021, the Agent confirmed by email his ongoing entitlement to reasonable medical and like expenses, but also advised that the entitlement to weekly payments would cease from 3 April 2021. The Agent attached its formal decision notice of 7 April 2021 (the 7 April 2021 notice) which advised that weekly payments had ceased. That was on the grounds he had ceased to reside in Australia.
17. Whilst living in India during the period of absence, Mr Philoraj attended a local physiotherapist, Mr Jerome Jeyaseelan, for treatment of the injury on six occasions between 8 June 2021 and 30 July 2022. He paid for that himself.
18. On around 6 April 2022, Mr Philoraj was notified by the Department that his TRV had been extended to 14 April 2024.
19. On 30 October 2022, Mr Philoraj returned to live in Australia on the extended TRV.
20. On 9 November 2022, Mr Philoraj commenced full-time employment as a press brake machine operator with another employer in Melbourne.
21. By letter of 2 December 2022, Mr Philoraj’s lawyers informed the Agent that Mr Philoraj had ‘since returned to Victoria on 30 October 2022 and therefore consider our client was only temporarily absent from Australia’ (the 2 December 2022 letter). The Agent was requested to ‘reinstate our client’s weekly payments of compensation effective from the date of termination on 3 April 2021 to 9 November 2022’. Various medical reports were forwarded in support of that request.
22. An exchange of emails then occurred between the Agent and Mr Philoraj’s lawyers which I will return to later in these reasons.
23. I now turn to the plaintiff’s oral evidence in relation to further matters.
Mr Philoraj’s evidence
24. Mr Philoraj, who gave evidence via a Tamil interpreter, had previously sworn an affidavit dated 29 March 2021 in support of his application for leave under the Act to commence common law proceedings (the affidavit). Under cross-examination, he agreed with the accuracy of what he had deposed to in the affidavit as follows:
It was my intention in coming to Australia to first obtain some work in order to fund further postgraduate studies and then complete those studies in Australia. I wanted to do a Masters of Business Administration or a Masters in Project Management/ Engineering Management. If I liked living in Australia, I wanted to try and find professional work here, utilising my qualifications and ultimately obtain permanent residency if I could.
Due to my injury and the consequences of it, my experience of Australia hasn't gone as planned. I have, in the circumstances, decided to return home to India rather than seek a visa to extend my Australian stay.
25. As for the nature of the pre-injury duties with Jobwire, he worked on a post-production line on quality control tasks including the finishing-off of very large pipes by painting edges.
26. Following discharge from hospital, Mr Philoraj was under the care of Dr Kallab. He had continuous and severe left thumb pain and swelling. He was prescribed Lyrica, Endep and other medication.
27. At the time of the attempted return to work on 25 June 2020, his whole left arm was still in a sling and surgical stitches were still in place. He was urged to try and work using his ‘good’ hand. He was directed to stand at steel gates and push a button letting workers through as required. After two hours of this, he began to cry with the pain because of people inadvertently knocking his left arm as they went by. He wanted to stay and work, but just could not cope.
28. He had ongoing psychological problems from the injury including flashbacks, anxiety and fearfulness. His sleep was disturbed. Memory and concentration were affected. Dr Kallab referred him to a psychologist Mr Abak whom he saw initially on 29 September 2020 and then every few weeks.
29. Dr Kallab also referred him to a pain management specialist, Dr Gavin Weekes, because the pain was unbearable.
30. The reason for his departure from Australia in April 2021 was because his TRV could not be extended.
31. Under cross-examination, Mr Philoraj agreed with the substance of the Agent’s file-notes of telephone conversations between himself and a case officer on various dates between 15 February 2021 and 1 April 2021. Those discussions concerned the impending TRV expiry. The file-notes recorded:
· Mr Philoraj telling the case officer he would ‘eventually’ apply for another visa to try and come back but was ‘not sure’ (15 February 2021).
· Later on, telling the case officer he was returning to India on 5 April 2022, his treatment was ‘going well’ and ‘everything is going smoothly’ (on 26 March 2021).
32. Under cross-examination, he agreed that when he left Australia in April 2021, he vacated his rental property in suburban Melbourne. He sold his motor-bike and also sold off or took back with him all of his possessions. He conceded that, at the time, his departing from Australia was a permanent return to India for him.
33. While back in India he lived with his elderly mother. At the time, COVID-19 pandemic lockdowns were in place. He did hand therapy exercises given to him by the physiotherapists in Australian and the one seen in India.
34. He had two phone calls with his psychologist Mr Abak however, under cross-examination, he conceded he never actually spoke with Mr Abak but attempted to do so.
35. While in India, on 23 June 2022, he had a psychiatric assessment with Dr Eli Kotler arranged by his lawyers. Under cross-examination, he agreed he told Dr Kotler the following:
Since returning to India ... he plans to study either a masters of business administration or a masters of engineering management. He would like to study in either the UK or Canada. He has been studying for and completing examinations to qualify for this … [and] the last time he sat the examination to apply for these studies, he missed out by half a point. … He is planning to trial a third exam … [and] studies most mornings and attend classes.
36. When asked in cross-examination whether he had intended to go and study in Canada or the UK, he agreed the entry examinations were a gateway for study in those countries or in any Western country, but fees were less in Canada or the UK. However, he never passed the requisite exam.
37. Under cross-examination, Mr Philoraj said his exam studies were affected by his impaired sleep and not being able to concentrate as he could before the injury. He agreed he either attended study classes a few hours a day during the week or did his own study at home.
38. As for any mental health treatment in India, under cross-examination, he agreed to having told Dr Kotler he had not sought any. He tended not to seek treatment even prior to the accident as that was ‘part of his personality’.
39. As for other activities while in India, he did neither paid nor voluntary work during his time there. In cross-examination, Mr Philoraj agreed to having told Dr Kotler he helped out at his local church with gardening and decorating. He denied helping his mother with housework other than minimal tasks such as accompanying her shopping. Rather, because of the injury, his mother was caring for him.
40. The TRV was extended by the Department without him applying or seeking to have it extended.
41. Although he received notification in April 2021 of his TRV being extended, he did not arrange to return to Australia for several months. On around 20 September 2022, a friend booked his return flight to Australia for him.
42. Under cross-examination, Mr Philoraj agreed that, even after the TRV was extended, he continued studies for the exam to go to the UK or Canada. His last attempt at the exam was in about July 2022. The reason he continued doing so was because he had paid the fees.
43. Under cross-examination, as for whether he would have gone instead to Canada or the UK had he ultimately passed the exam, (rather than returning to Australia), he said he would have thought about it.
44. As for his employment after returning to Australia which he commenced on 9 November 2021, he started off as a machine operator handling sheet-metal. However he found that hard because of the injury. After he told his new employer about his injury and restrictions on lifting, he was given a different position. He was still doing that work today.
45. In re-examination, he said that within the first few weeks of starting, his employer learned of his engineering qualifications from India and gave him a quality control role. The job he was doing now was much easier physically than the pre-injury job for Jobwire.
46. Mr Philoraj has kept working in spite of the injury because he has no option.
47. He still has pain although not at the same level as experienced just after the injury. The tip of the left thumb remained tender and extremely sensitive. If he touched something hot or cold or knocked it, he had sharp pain. He avoided using his left hand for this reason. He had continuous numbness and pain in the left thumb region which affected activities such as dressing. He took Lyrica occasionally from old scripts until they had run out. He takes no medication now and has no treatment. He still does hand therapy exercises from the physiotherapists.
48. Under cross-examination, he said another reason for him not taking medication was worry about side-effects. When he was taking the tablets before, he had diarrhoea, black rings under his eyes and black marks on his body.
49. As for why he paid for the physiotherapy treatment in India himself, in re-examination, he said his understanding was that he could not claim for treatment expenses incurred whilst overseas.
50. His mental state was not the same as before the accident. He has disturbed sleep and flashbacks. He feels sad and cries often. He is constantly fearful of another work accident. He has fears about his future including his marriage prospects which he considers are poor due to his injury and impairment. He wanted to see a psychologist although, on the other hand, he had accepted he had a problem for life that he was stuck with.
51. Since returning to Melbourne, he has tried to make contact with Mr Abak to arrange treatment sessions but has been unable to reach him.
52. In cross-examination, he agreed that since returning to Australia he has not gone back to see Dr Kallab nor any other GP about a referral to psychologist. He did not know the procedure to do that. He had no money to see GPs or buy medication even though he is employed because of living expenses and supporting his mother in India financially.
Medical Evidence
53. Dr Malek Kallab, treating GP, provided a report to Mr Philoraj’s lawyers dated 17 February 2021. Mr Philoraj was first seen on 6 June 2020 for amputation of his distal phalanx of the left thumb. He complained of wound pain and tenderness. Recommended treatment was hand therapy, pain control and referral to a psychologist because of stress, depressed mood and possible post-traumatic stress disorder (PTSD). Dr Kallab opined there was an inability to perform pre-injury employment. There would be ongoing restriction of capacity with inability to do pre-injury employment in the future. The loss of phalanx from the thumb may stay painful and cause constant difficulties with ongoing affected mood causing stress, anxiety and possible PTSD.
54. Mr Ilker Abak, treating psychologist, provided a report to Mr Philoraj’s lawyers dated 11 March 2021 and a supplementary report of 21 February 2022 (with attached clinical questionnaires). Mr Philoraj attended initially on 29 September 2020 and was last seen on 11 March 2021. The initial clinical impression was of significantly intense symptoms consistent with PTSD requiring therapeutic intervention. It was opined the intensity of PTSD symptoms was such that Mr Philoraj presented risk to himself or others due to impaired decision-making capacity, poor memory and concentration, hypervigilance and flashbacks. He opined that, as at 11 March 2021, he was unfit for pre-injury employment due to physical and psychological injury. He opined in his supplementary report that the situation would have been unchanged at the time of Mr Philoraj’s departure from Australia.
55. Dr Gavin Weekes, pain specialist, wrote a report to Dr Kallab dated 5 January 2021. He noted signs and symptoms suggestive of chronic regional pain syndrome (CRPS) of the left upper limb including altered sensation, discolouration and swelling.
56. Mr Jerome Jeyaseelan, physiotherapist, prepared a letter of 2 September 2022 addressed to ‘To whomever it may concern’ stating: ‘This is to certify’ that [Mr Philoraj] is ‘suffering from permanent disability’ having had thumb amputation surgery. The diagnosis was loss of the distal phalanx of thumb with the stated cause of disability being ‘Industrial injury’. As to ‘Extent of Disability’, it was opined that ‘The extent to which it can affect the person is difficulty in prehension handling, difficulty in some of the activities of daily living’. The condition was stated to be ‘permanent / Non progressive / Non likely to improve’.
57. Dr Eli Kotler, psychiatrist, provided a medico-legal opinion for Mr Philoraj’s lawyers dated 24 June 2022. The post-injury history (as put to Mr Philoraj in cross-examination) has been set out previously in these reasons. It was opined that the diagnosis was of PTSD in partial remission. There were ongoing post-traumatic features, mood and anxiety symptoms related to the injury. Medication and psychology were indicated. As for capacity from a psychiatric perspective, it was opined that it was reasonable to assume there was no work capacity at that time.
58. Dr Dominic Yong, occupational physician, provided a medico-legal report dated 1 March 2021 for the Agent. There was reported ongoing pain with symptoms of depression and anxiety. On examination, the thumb was tender from tip to base. Range of thumb movement was reduced with inability to do a pincer grip or ‘oppose’ the thumb. As for capacity, tasks could be performed on reduced hours with physical restrictions including lifting no more than 250 grams with the left hand and avoiding the left thumb touching objects. Additionally, there was a psychological co-morbidity requiring treatment which could impact recovery.
59. Dr Yong also reported on 9 March 2021 after a worksite assessment at Steel Mains of two alternative positions. The K9 role involved operating a K9 machine using a hand-held remote-control. The turntable role required operation of a turntable by a touchscreen panel. Both roles were opined to comply with the physical restrictions set out in his 1 March 2021 report and would suit a graduated return to work program aiming to return to pre-injury employment. This process was likely to take a few months and this would be shorter if the ongoing role was the K9 role rather than the pre-injury role.
60. Dr Yong then examined Mr Philoraj on 13 December 2022 after his return to Australia. He obtained a history of the exam studies in India, of the physiotherapy treatment and of ongoing mental health issues. On examination, there was left thumb tenderness, altered sensation and reported pain. Range of movement was significantly reduced with unchanged inability to grip items. The left wrist skin graft donor site was sensitive to touch. It was opined that the physical restrictions were unchanged from the 1 March 2021 assessment. As for capacity for pre-injury employment, Dr Yong opined that the pre-injury employment would exceed the current functional tolerances and restrictions and so there was no capacity to perform pre-injury duties. The current employment role commenced after the return to Melbourne was suitable and appeared to comply with the physical restrictions.
61. Dr Dennis Handrinos, psychiatrist, prepared a report for the Agent dated 10 March 2021 for an impairment benefit assessment. It was opined there was an adjustment disorder with mixed anxiety and mild features of traumatisation and the prognosis was guarded. In a supplementary report of 15 March 2021, having reviewed Mr Abak’s reports, Dr Handrinos’ opinion remained unaltered on diagnosis and he disagreed there were symptoms consistent with a PTSD diagnosis.
62. Mr Damon Thomas, plastic and reconstructive surgeon, prepared an impairment assessment report for the Agent dated 16 March 2021. On clinical examination, the deformity, scarring and hypersensitivity of the left thumb was noted. The finding was of post-traumatic CRPS with chronic pain, reduced range of motion and reduced function. The prognosis was very poor and the CPRS was likely to be long-term.
Analysis
63. Section 175 of the Act provides:
Absence from Australia
(1)If a worker who is receiving weekly payments ceases to reside in Australia, his or her entitlement to weekly payments ceases unless the worker has, before leaving Australia, satisfied the Authority or self-insurer that the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.
(2)If a worker ceases to reside in Australia and subsequently claims to be entitled to the payment of weekly payments, the worker must, in addition to establishing his or her entitlement, satisfy the Authority or self-insurer that the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.
(3)If a worker who is receiving weekly payments is temporarily absent from Australia, his or her entitlement to weekly payments is limited to a maximum aggregate period of 28 days in respect of any certificate or certificates provided by a medical practitioner outside Australia unless the Authority or self-insurer is satisfied that there are special circumstances which justify the extension of that period for a further period as is specified in the certificate.
(4)If the Authority or self-insurer is satisfied that the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity, a worker to whom subsection (1) or (2) applies is entitled to receive weekly payments if the worker proves in the prescribed manner and at the prescribed intervals—
i.his or her identity; and
ii.the continuance of the incapacity in respect of which the weekly payment is made.
64. As I said at the outset, the dispute concerned the operation of s 175 and differing views as to the nature and characterisation of Mr Philoraj’s departure on 3 April 2023.
65. It was not in issue that s 175(1) of the current Act is equivalent to s 97(2) of the Accident Compensation Act 1985 (the ACA), s 175(2) to s 97(2AA) and s 175(3) to s 97(2A) of the ACA.[1]
[1]No. 10191 of 1985 (re-print incorporating amendments as at 17 April 2008).
66. Previously, in the ACA, the predecessor provisions were sub-sections of s 97 under the general heading of ‘Provisions relating to the payment of compensation’.
67. In contrast, in the current Act, the Parliament has enacted those same provisions in a stand-alone section under the heading ‘Absence from Australia’.
68. Section 36(2A)(a) of the Interpretation of Legislation Act 1984 provides that headings to sections form part of the Act.
69. Accordingly, it seems to me, as a matter of statutory interpretation, that the Parliament has deliberately intended for s 175 to be the framework governing the entitlement to weekly of injured workers absent from Australia.
70. Later in these reasons, I will consider further the operation of s 175 with respect to whether or not the entitlement to weekly payments revives upon an injured worker returning to live in Australia.
71. Neither Counsel referred me to authorities that have considered s 175 of the current Act nor am I aware of any.
72. The phrase ‘ceases to reside’ has, however, been judicially considered as it appears in the context of the ACA and comparable interstate legislative schemes.
73. The matters relevant to deciding whether or not an injured worker has ceased to reside are helpfully distilled from the cases in the ‘Accident Compensation Vic’ Guide at [s97.2].
74. The leading authority is a decision of the NSW Court of Appeal in Walter Barr Pty Ltd v Bucciarelli (Walter Barr).[2] The guidance provided by the judgements in Walter Barr is referred to in later cases including Galanis v Accident Compensation Commission (Galanis),[3] a decision of the then Victorian Accident Compensation Tribunal.
[2][1966] 2 NSWR 737 (‘Walter Barr’).
[3](1990) VACR 73-034 (Judge Hardham) (‘Galanis’).
75. Walter Barr considered the phrase ‘ceases to reside’ in the context of s 54 of the NSW Workers’ Compensation Act 1926 (as amended). Section 54 is similar to s 175(1) of the current Act and s 97(2) of the ACA. The sections all provide that weekly payments cease upon a worker ceasing to reside in Australia (unless there is certification of permanent incapacity).
76. As for what is meant by ‘ceases to reside’, the NSW Court of Appeal (Wallace P, Walsh and Jacobs JJ.A) held that a permanent departure is necessary, as distinct from a departure which is intended to be temporary although not necessarily in the sense of being a final departure forever. Jacobs JA, in the leading judgement, had this to say: ‘…if there is a departure which is intended to last indefinitely then even though there may be an ultimate intention of returning nevertheless the departure can be described as permanent and there will be a ceasing to reside’.[4]
[4]Walter Barr [1966] 2 NSWR 737, 740.
77. As for the task of evaluating the evidence, Walsh JA put it this way:
Once it is said that something more than a temporary departure is required, the whole matter is ... one of fact and degree, in deciding which attention can be given in a particular case to the length of time for which the worker has actually stayed away from Australia, to the intention with which the worker left Australia and to other relevant circumstances, such as the retaining or the giving up of his place of residence here, the whereabouts of his family and so on.[5]
[5]Ibid, 738.
78. The WorkSafe Victoria Claims Manual at paragraph 3.7.2 sets out practical indicia to guide agents in deciding whether or not a worker has ‘ceased to reside’, apparently based on Walter Barr and other cases. These include: whether a visa has expired; disposition or otherwise of home and vehicle; arrangements and activities whilst overseas; the extent or otherwise of remaining family and social ties to Australia; and so on.
79. The usefulness of the Claims Manual as a guide has been previously noted by Magistrate Wright in another context in Burton v AMT Industries[6] and by me in the decision of Lim v Iconic Hotels Group.[7]
[6][2021] VMC 11 [54].
[7][2022] VMC 21 [67].
80. In summary, whether a worker when departing from Australia ‘ceases to reside’ is a question of fact that turns on an evaluation of the individual facts and circumstances of the case. The circumstances surrounding the departure including the worker’s intention when leaving as well as the circumstances of the stay and length of time outside Australia are all relevant matters.
81. Having set out the legislative framework and guiding principles, I now turn to the central question of ‘cease to reside’, the pleadings and submission. I will then assess the evidence and make findings. Later in these reasons, I will also consider further the operation of s 175.
Whether Mr Philoraj ceased to reside in Australia on 3 April 2020 or was ‘temporarily absent’
82. As a starting point, it is useful to consider the way in which the pleadings framed the dispute.
83. By Further Amended Statement of Claim (FASOC) dated 29 March 2023, it was pleaded (at paragraph 7): ‘The plaintiff was temporarily absent from Australia from on or around 3 April 2021 until on or around 30 October 2022’.
84. The plaintiff, in his prayer for relief, sought an order to set aside the 7 April 2021 notice and claimed weekly payments from 3 April 2021 to 9 November 2022.
85. By Further Amended Notice of Defence (FANOD) dated 31 March 2023, Jobwire denied (at paragraph 7) that Mr Philoraj was ‘temporarily absent’ from Australia.
86. Additionally, or in the alternative, the FASOC relied (at paragraphs 13 and 14) on the 2 December 2022 letter (requesting reinstatement of weekly payments from 3 April 2021 to 9 November 2022) as well as the Agent’s 12 December 2022 email in response.
87. However, the FANOD (at paragraph 15 and 16(h)) denied there was a dispute with respect to the plaintiff’s request for reinstatement.
88. Pausing there, it is convenient to briefly deal with that question here.
89. By way of initial response to the 2 December 2022 letter, the Agent had (as pleaded in the FASOC) sent an email dated 12 December 2022 which stated as follows:
In accordance with s167, Mr [Philoraj] is require [sic] to submit valid certificates of capacity to support any request for weekly payments. … If Mr [Philoraj] is unwilling to provide a Certificate of capacity, a notice can be issued with appeal rights to allow Mr [Philoraj] to appeal through the correct process. …
90. Mr Philoraj’s lawyers sent the Agent follow up emails on 18 January 2023 and 28 March 2023 that referred to this proceeding and requested that a notice of decision be issued in response to the 2 December 2022 letter.
91. By email dated 29 March 2023, the Agent refused to issue a notice stating that it ‘had not received a valid request for reinstatement, by way of provision of a valid certificate of capacity’ (the 29 March 2023 email). The 29 March 2023 email went on to say:
Any formal decision needs to be supported by evidence and without a Certificate, it is unclear exactly what diagnosis, injury and capacity is being requested for reinstatement.
Please note the advice I provided below on 22/12/2022 [sic][8] was incorrect where I noted we could issue a letter if a Certificate was not provided.
[8]From the tendered email chain, this would appear to be a typographical error referring to the Agent’s initial 2/12/22 email.
92. I find, therefore, that neither party considered a formal notice of decision had been issued in response to the 2 December 2022 letter. Mr Philoraj’s lawyers wrote twice to the Agent requesting one and the Agent would not do so for the reason that ‘it is unclear exactly what diagnosis, injury and capacity is being requested for reinstatement’. Moreover, the Agent specifically stated that the reinstatement application was not validly made.
93. In any event, as the 2 December 2022 letter asserted specifically that Mr Philoraj had been ‘temporarily absent from Australia’, it seems to me that the application in that letter for payment of weekly payments was being made under s 175(3).
94. That was certainly how the case proceeded at hearing.
95. For completeness, the FANOD also pleaded (at paragraph 16(a)) that if the plaintiff was ‘subsequently’ claiming to have an entitlement to weekly payments, that was also denied under s 175(2).
96. Ultimately, the core issue to be decided was this: had Mr Philoraj ceased to reside in Australia on 3 April 2021 (as Jobwire submitted) within the meaning of s 175(1) or s 175(2)? Or, put another way: had he, in all the circumstances, been temporarily absent from Australia within the meaning of s 175(3) (as Mr Philoraj claimed)?
97. Of course, the significance of Mr Philoraj’s departure from Australia being characterised as either permanent or the start of being ‘temporarily absent’ is self-evident from s 175. It is that characterisation which decides the applicable test for entitlement to weekly payments after an injured worker leaves Australia.
98. A conclusion that Mr Philoraj was ‘temporarily absent’ would require him only having to establish incapacity for pre-injury employment with appropriate certification subject to ‘special circumstances’ under s 175(3).
99. As for the 7 April 2021 notice, there was no dispute that decision was made pursuant to s 175(1) as then Mr Philoraj was receiving weekly payments and also had not, before departure, satisfied the requirement of no current work capacity (NCWC) likely to continue indefinitely.
Jobwire’s Submissions
The inevitable conclusion was that Mr Philoraj was ‘caught’ by s 175 of the Act and his entitlement to weekly payments therefore ceased. He had, indisputably, not satisfied the requirement of NCWC likely to continue indefinitely before departure pursuant to s 175(1) nor subsequently pursuant to s 175(2).
Walter Barr and other cases such as Galanis were authority for the proposition that a worker would ‘cease to reside’ when the factual findings as to arrangements and circumstances pointed to permanency.
In the present case, the overwhelming weight of evidence pointed to a conclusion that Mr Philoraj’s departure from Australia in April 2021 was set to be a permanent arrangement.
That was clear on the plaintiff’s own oral evidence including under cross-examination. It was also plain from evidence contemporaneous with his departure about his own intentions at the time. Importantly, that contemporaneous evidence was adopted by Mr Philoraj under cross-examination (being the Agent’s file notes of discussions with him and the affidavit sworn just days before his departure).
Mr Philoraj left Australia upon expiry of the TRV. After that, having no lawful basis for remaining in Australia, he departed without taking any steps to renew or extend the TRV prior to his departure (as he said in evidence).
Moreover, it was clear from the cases that arrangements did not need to mean final or forever. Thus, although Mr Philoraj ultimately returned here, the characterisation or nature of the departure itself did not alter retrospectively.
Mr Philoraj’s Submissions
With respect to the words ‘ceases to reside’ in s 175(1), there needed to be imported into the phrase a concept of voluntariness about the injured worker’s departure. In Mr Philoraj’s case, the concept of a voluntary departure was absent.
Indeed, it was a matter of crucial significance that, on the evidence, Mr Philoraj’s departure from Australia was entirely involuntary. He left due to the expiry of the TRV with no choice or election in the matter. He obeyed the law and complied with his obligation to depart.
The ‘vice’ intended by the legislature to be ‘cured’ by provisions such as s 97(2) of the ACA and s 175(1) of the current Act was the situation of injured workers opting to return to live in their country of origin for ‘lifestyle’ reasons. That scenario was fundamentally different to the present one.
The factual scenarios in cases like Walter Barr and Galanis were distinguishable because the injured workers in those cases (unlike Mr Philoraj) had voluntarily taken themselves overseas.
Ultimately, Mr Philoraj returned to Australia and obtained employment promptly. It mattered little how long it was before he come back; rather, what was important was that he did come back.
Based on these matters, the Court ought to conclude that Mr Philoraj was ‘temporarily absent’ from Australia and so s 175(3) was the applicable provision.
As for the activities in India, after being forced to leave Australia, he had no option but to look at alternatives for his future including further studies. Having incurred fees and begun the exam process before being notified of the extension of the TRV, it was reasonable for him to exhaust that option. As for the contention by Jobwire that Mr Philoraj ceased to have ties here, that ought to be considered in the context of the departure being involuntary.
Once it was accepted the absence was temporary, then it was open to the Court to conclude Mr Philoraj did satisfy the test under s 175(3). He obtained certification from his treating physiotherapist in India as to a ‘permanent disability’ following ‘Industrial injury’. It was opined there was ‘difficulty in prehension handling, difficulty in some of the activities of daily living’. Thus, it was plain enough that the local physiotherapist was attempting to certify for work capacity.
Further, an extension of certification beyond 28 days was entirely justified under s 175(3) as there were ‘special circumstances’. They were: the injured worker being forced to leave the county; his belief (albeit unfounded) that he had to pay for treatment overseas; and his genuine attempt to provide certification as to capacity.
That completes the submissions regarding ‘ceases to reside’.
Consideration
I now turn to make factual findings on the evidence. I will then set out the conclusions that flow from my findings.
As for my impressions of Mr Philoraj, I found him to be a credible witness who endeavoured to answer questions under cross-examination directly and without evasion. For example, he seemed to me to be entirely frank in his oral evidence as he was, also, with Dr Kotler about his activities whilst in India.
Counsel for Jobwire contended there was a puzzling contradiction in Mr Philoraj relying on an interpreter in evidence and in swearing his affidavit, yet the evidence was that he gained his tertiary qualifications in India in English.
To my mind, an injured worker’s reliance on an interpreter (when English is a second language) in the context of the pressures of litigation is not a fair basis, on its own, for the impugning of a plaintiff’s credit.
In any event, it seems to me that Mr Philoraj’s credit did not come under serious attack. Although he gave apparently inconsistent evidence in a few instances, they were not on key disputed matters. For example, in examination in chief, he said he spoke to the psychologist Mr Abak, then under cross-examination, he altered his evidence saying he never spoke with him but only attempted to do so. Another example was his slightly bizarre evidence that he stopped taking medication because it caused ‘black marks on his skin’ although that was not mentioned to any doctor.
On the other hand, Mr Philoraj made numerous concessions against interest on matters that were central to the dispute. By way of example, under cross-examination, after evidence was adduced about ending his residential lease in Melbourne and selling off his motor bike and so on, Mr Philoraj agreed with the proposition that his return to India in April 2021 was at the time a permanent return for him. Additionally, as an example of his frankness about his time in India, he conceded he would have ‘thought about’ going to the UK or Canada had he passed the requisite exam.
For completeness, I make the passing observation that Mr Philoraj, having suffered a life-altering injury, had been stoical in his response to that and in ultimately returning to work.
Of course, it is for the Court to arrive at an objective view of the character of the departure and absence on the whole of the evidence. Yet the injured worker’s intention will be an important consideration in a determination of whether he or she has ceased to reside here. That is clear from of the passage of the judgement of Jacobs JA in Walter Barr set out previously in these reasons.[9]
[9]Walter Barr [1966] 2 NSWR 737, 740.
Pausing here, it is useful to consider the facts in the case of Galanis to which both Counsel referred to in submissions. The injured worker decided to leave Australia with her son to live in her country of origin because of the son’s health issues. She lived in Greece for about 12 months in a house she rented whilst her husband stayed in Australia. Hardiman J referred to the principles enunciated in Walter Barr and decided the worker had ceased to reside in Australia although the evidence was the worker always intended returning to Australia.
In this case, Mr Philoraj conceded in cross-examination that his return to India was of a permanent nature. That was consistent with the contemporaneous evidence.
Firstly, in his affidavit sworn just days before his departure, he stated that his time in Australia had not gone according to plan and that he had ‘decided to return home to India rather than seek a visa to extend my Australian stay’ (my emphasis added).
Secondly, and also adopted in cross-examination, there were discussions with the Agent that his return overseas was ‘set to be a permanent arrangement’ and that he may ‘eventually apply for another Visa to try and come back but is not sure’ (again my emphasis added).
In assessing the whole of the evidence as to the circumstances of Mr Philoraj’s departure from Australia, I find that the weight of evidence supports the conclusion that Mr Philoraj did cease to reside in Australia on 3 April 2021 in a permanent sense. That conclusion is based on my findings on the evidence as follows:
a. I find that Mr Philoraj, on his own evidence, ended his residential lease, sold his motor-bike and gave away or took with him all household chattels and belongings. Moreover, there was no contrary evidence of arrangements or provision made for the contingency of a return to Australia. (I will return later in these reasons to consider the involuntary nature of the departure).
b. I find that his only family was in India and there was evidence of a lack of remaining strong social ties to Australia.
c. The absence from Australia was open-ended initially and ultimately of some eighteen months duration.
d. His life back in India including being active and immersed in his local community such as by volunteering with his church.
e. It is apparent from the evidence regarding the exams study that he may not have intended to remain permanently in India. Yet I find there was an absence of any focus on a return to Australia. I find on the evidence that Mr Philoraj wanted to qualify for visas for other countries. That focus (and the lack of focus on returning to Australia) was plain from the detailed, contemporaneous history taken by Dr Kotler in June 2022 whilst he was in India. That history was also accepted in cross-examination by Mr Philoraj.
f. I find that he continued to pursue studies and engage in community activities for over 18 months including for several months after the TRV was extended. Whilst I accept his Counsel’s submission that circumstance, of itself, does not lend support to him having ceased to reside, neither does it support a finding of being temporarily absent from Australia.
g. It is true, on the evidence, that he lived with his mother whilst in India rather than, say, renting his own accommodation, however I consider that does not advance matters either way. That is because there was no evidence adduced as to whether that was different to, or the same as, his living arrangements before coming to Australia in October 2019.
h. The TRV was extended by the Department without him taking any steps, either before departure or while in India, to apply to extend it which would indicate an intention to return to Australia.
Having made those findings, I now turn to submissions of Mr Philoraj’s Counsel regarding the significance of the departure being ’involuntary’ due to the TRV expiry.
Certainly, the unchallenged evidence was that Mr Philoraj was obligated to leave Australia on or by 3 April 2021 because he had no lawful basis for remaining after that time.
I accept that the circumstance of the forced departure due the TRV expiry is a relevant consideration.
However, I reject the submission that, by reason of the departure not being voluntary in that sense, a finding that Mr Philoraj had ‘ceased to reside’ was precluded.
Rather, to my mind, the correct approach, based on Walter Barr, is to weigh the fact of the expired visa as one circumstance to be evaluated in the context of the whole of the evidence as to an injured worker’s arrangements, circumstances and intentions.
For example, an injured worker may be forced to leave the country because of a visa issue, yet also be doing any or all of the following: actively taking steps to apply to reverse or extend the visa expiry; making contingency accommodation or other arrangements for an intended return; or expressing the intent or aspiration to return to Australia (either when departing or whilst absent).
In this case, as I have found, there was no such evidence based on my factual findings nor was that reflected by Mr Philoraj’s own evidence nor the contemporaneous evidence as to his intentions. (Again, I refer to his affidavit, the record of discussions with the Agent and the history given to Dr Kotler whilst in India all of which, as has been stated, were adopted by Mr Philoraj under cross-examination).
I also must reject the submission that interpretation of the phrase ‘cease to reside’ as in s 175(1) requires there to be imported a concept of voluntariness. Counsel pointed to no actual basis for inferring such an imported meaning.
I next consider the submission that ‘cease to reside’ provisions such as s 97(2) or s 175(1) and (2) operated to cure the ‘vice’ of injured workers returning to live long-term in their countries of origin.
Whilst that submission was not supported specifically by reference to any express intention on the part of the legislature, it seems to me, and I accept, that the legislative purpose of such provisions is ensuring that injured workers (other than those with NCWC likely to be indefinite) are available for occupational rehabilitation.
Such a purpose with respect to s 175 is expressed in the ‘Explanatory Memorandum’[10] as follows: ‘This is because the worker's absence from Australia will impede the worker's capacity to comply with their claim and return to work related obligations under this [Act]’.
[10]Clause 175.
Additionally, the objectives set out in s 10 of the Act must always be borne in mind. Those include: (b) providing for an injured worker’s effective occupational rehabilitation and early return to work; and (d) providing appropriate compensation in the most socially and economically appropriate manner.
It is fair to say those objectives are unlikely to be achievable when an injured worker is out of the country long-term.
In Galanis,[11] as both Counsel noted in supplementary submissions, the judge there referred to the appropriateness of taking into account the statutory scheme overall and the practicalities for the employer/Agent in supporting a return to work and so on.
[11]Galanis (1990) VACR 73-034 (Judge Hardham).
Next, I must reject the submission for Mr Philoraj that, by reason of him having returned to Australia, it followed that he was ‘temporarily absent’ for the period that he was away.
In my opinion, the fact of a subsequent return to live in Australia does not alter retrospectively the characterisation of an injured worker’s departure in the first place. In other words, a departure that is permanent in nature is not later rendered as something else, that is the start of a period of being ‘temporarily absent’, merely by reason of an injured worker ultimately returning to live here.
As I have found, the weight of evidence supports the conclusion that Mr Philoraj’s departure and absence were of a permanent character. The weight of evidence to which I have already referred regarding permanency does not support a conclusion that his departure and absence constituted a temporary disruption of his residency in Melbourne.
I agree with the submission of Counsel for Jobwire that permanency in arrangements for a departure or absence does not require finality or to be forever. That is clear from the judgements in Walter Barr.
Based on my factual findings on the evidence, I conclude as follows:
a. Mr Philoraj ceased to reside in Australia on 3 April 2021.
b. Mr Philoraj did not satisfy the requisite test of ‘NCWC likely to continue indefinitely’ before he ceased to reside in Australia nor at any time after that. (That was not in dispute but I will turn now to the evidence on capacity in detail).
c. Accordingly, in accordance with the operation of either s 175(1) or s 175(2) of the Act, the entitlement to weekly payments ceased on 3 April 2021 as he was absent from Australia.
I now turn to the medical evidence on capacity.
Whether Mr Philoraj had capacity for pre-injury employment
Jobwire submitted that Mr Philoraj had a capacity for pre-injury employment based on the evidence of a prolonged lack of treatment and absence of certificates of capacity.
I reject that submission. Rather, the weight of evidence was overwhelmingly to the contrary. Indeed, there was no medical opinion that supported Mr Philoraj having capacity for pre-injury employment.
Dr Yong, the only occupational physician in the case, opined in March 2021 (prior to the departure) that the following physical restrictions were appropriate: lifting no more than 250 grams with the left hand and avoiding the left thumb touching objects.
Dr Yong maintained that opinion when he assessed Mr Philoraj in December 2022 after the return to Australia. He opined specifically that the pre-injury duties at Jobwire would exceed the current functional tolerances and restrictions. He concluded that Mr Philoraj did not have a capacity to perform pre-injury employment and hours.
I accept and adopt the opinion of Dr Yong as being highly persuasive for the following reasons:
a. His expertise as an occupational physician;
b. The fact that he had the opportunity of clinically assessing Mr Philoraj before and after his time in India;
c. The fact that he did onsite assessments and assessed the pre-injury employment and the other roles at Jobwire;
d. The history he took as to the current employment duties which complied with the physical restrictions imposed by the injury (in contrast to the pre-injury duties).
Additionally, Dr Kallab, the treating GP until Mr Philoraj’s departure, opined in his report of 17 February 2021 as to an inability to perform pre-injury employment that would be ongoing and continue into the future.
From a psychological perspective, Mr Abak opined that at least before departure he would have been unfit for pre-injury employment due to the psychological injury and the intensity of the PTSD symptoms.
Dr Kotler who assessed Mr Philoraj in June 2022 (while still in India) opined that it was reasonable to assume there was no work capacity from a psychiatric perspective at the time of departure.
For completeness, neither Dr Handrinos nor Mr Thomas (who assessed Mr Philoraj for impairment purposes only) gave an opinion on work capacity.
For these reasons, I have concluded that Mr Philoraj had an incapacity for pre-injury employment from 3 April 2021 and such incapacity remains current.
Was there an entitlement to weekly payments that revived upon Mr Philoraj’s return to live in Australia on or after 30 October 2022?
The question then arose as to whether there was any entitlement to weekly payments following the absence from Australia. In other words, having found Mr Philoraj ceased to reside in Australia within the meaning of s 175(1) or s 175(2), was there an entitlement to weekly payments that ‘revived’ upon him returning to live in Australia from 30 October 2022?
After I reserved my decision, I listed the case for a special mention and raised this question with Counsel. It seemed to me that submissions in closing addresses did not squarely deal this issue. That was because submissions were, as I have said, concerned with Mr Philoraj having either ‘ceased to reside’ (and so engaging s 175(1) or (2)) or been ‘temporarily absent’ (engaging s 175(3)).
Counsel therefore undertook to file supplementary written submissions on that discrete question according to an agreed timetable.
Jobwire’s submissions
Counsel for Jobwire submitted that the answer was ‘no’ based on the following:
a. The legislative intent was plain from the ‘clear words’ of s 175(1) which provide that the ‘entitlement to weekly payments ceases unless…’ the injured worker satisfied the NCWC test before departure.
b. Additionally, s 175(1) does not state that the entitlement to weekly payment is suspended until such time as the injured worker returns to Australia. That contrasts with other provisions in the Act where the legislature does provide for suspension of weekly payments. Those provisions are where the worker failed to: comply with independent medical examination obligations: s 27(2); comply with a notice about return to work obligations: s 116(4); cooperate with a Medical Panel: s 309(1).
c. The reference in s 175(3) to ‘temporarily absent’ is clearly intended to cover a situation of a worker going overseas for a period not amounting to ‘ceasing to reside’ as contemplated by s 175(1) or 175(2). Thus, if the Court were to determine that Mr Philoraj ‘ceased to reside’, then he was not ‘temporarily absent’ and so his claim to have an entitlement to weekly payments must fail.
d. Whilst only a few authorities had considered ‘cease to reside’, the proper approach for this Court to adopt was that in Halpern v Comdec Pty Ltd (Halpern), a decision of the Industrial Court of South Australia. There, the judge had decided that the entitlement did not revive for an incapacitated worker who returned to live in Australia after a previous finding by the Court that he had ceased to reside here.[12]
e. The legislature’s rationale for provisions such as s 175 and s 97(2) was the same as the judge articulated in Galanis and, accordingly, that rationale would point against an entitlement being revived upon a return to Australia.
Mr Philoraj’s Submissions
[12](1980) 47 SAIR 628, 637.
Mr Philoraj’s Counsel submitted, on the other hand, that the answer was ‘yes’ for the following reasons:
a. Section 175 deals with expressly with entitlement to weekly payments of compensation whilst an injured worker is absent from Australia.
b. The Act is silent on entitlement regarding the circumstance of an injured worker returning to live here (other than after being ‘temporarily absent’).
c. The narrow view expressed in Halpern regarding entitlement ceasing for all time, as relied upon by Jobwire to support its construction of s 175(1), ought not be adopted.
d. Had the Parliament intended the consequence that an injured worker’s entitlement to weekly payments ceased ‘once and for all’, it would have stated that. For example, by contrast, in s 116(2)(c) and s 116(8) of the Act, where a worker fails to comply with certain return to work obligations, it is expressly provided that the Agent may ‘cease and determine’ the entitlement.
e. Moreover, s 163(1) which governs entitlements after the second entitlement period uses analogous wording to s 175(1) in stating that ‘a worker’s entitlement to compensation in the form of weekly payments ceases upon the expiry of the second entitlement period…’ It was trite law to say that a worker’s payment may cease at that point but upon satisfying the requisite test, the entitlement may later be reinstated.
Consideration
I prefer and accept the submissions of Mr Philoraj’s Counsel on this issue.
For the reasons that follow, it seems to me that, once no longer absent from Australia, an injured worker’s entitlement to weekly payments is governed by provisions of the Act other than s 175 of the Act.
I am of the view that the entitlement is revived subject to the usual provisions of the Act concerning weekly payments. To my mind, that is so even where the injured worker has (as I found Mr Philoraj did) ceased to reside here within the meaning of s 175(1) or (2).
In my opinion, that conclusion is supported in a number of ways.
Firstly, as I have already said, as a matter of statutory interpretation and based on s 36(2A)(a) of the Interpretation of Legislation Act 1984, the Parliament has, by enacting the provisions in the current Act under the heading ‘Absence from Australia’, made it clear that when the injured work is not, or is no longer, absent from Australia, the entitlement is governed by other provisions of the Act.
Secondly, there would seem to be no policy basis for the entitlement not to revive, subject to the Act, for the very reason that the injured worker, once no longer absent from Australia, is able to be offered and to access occupational services. That follows from a consideration of the rationale for s 175 (as expressed in the Explanatory Memorandum to which I have already referred) about occupational and return to work objectives being impeded where an injured worker is absent from Australia. Those were essentially the same policy considerations expressed by the judge in Galanis as relied upon in Jobwire’s submission.
Thirdly, the online Claims Manual at 3.7.2 sets out guidance for Agents under the heading ‘Worker moves overseas’. Then, at the end of that section, there is a sub-heading: ‘If the worker returns to Australia to live on a permanent basis’. Under that sub-heading, the Claims Manual states: ‘the “resides overseas” flag will need to be removed (i.e. left blank)’. That guidance to Agents (whilst of course only guidance) supports the conclusion that the entitlement is, upon an injured worker returning to live here, governed by provisions other than s 175.
Fourthly, the conclusion that, upon a return to live in Australia, the entitlement is governed by provisions other than s 175 is supported by the evidence in this case. The Agent’s response in the email of 12 December 2021 (to the 2 December 2021 letter) was to make the following request: ‘In accordance with s167, Mr [Philoraj] is require [sic] to submit valid certificates of capacity to support any request for weekly payments’.
For these same reasons, I must reject the submission for Jobwire that the approach taken in Halpern should be adopted.
On my reading of Halpern, the judge appears to have been persuaded that the worker’s return to Australia did not revive the entitlement because His Honour’s observation that ‘had Parliament intended that some new operating fact should trigger off yet another legal result, it would have said so’.[13]
[13]Ibid 636.
At the same time, the judge in Halpern acknowledged that the contrary view was expressed (although not decided) by Jacobs JA in Walter Barr.[14] The same question was left open in an earlier NSW decision of Sultana v Public Transport Commission of NSW.[15] That is apparent from the judge’s observation that the fact that the worker is again resident in Australia does not entitle him to revive the right to receive weekly payments at least in respect of the period while he was not residing in Australia.
[14]Ibid 634.
[15](1974) WCR 54.
In any event and for the reasons already stated, whilst these cases including Halpern have historical interest, I remain of the view that the Victorian Parliament has, in enacting the current Act and s 175 in particular in its present form, intended that the entitlement to weekly payments is governed by provisions other than s 175 once an injured worker is no longer absent from Australia.
I disagree with the submission for Jobwire that had the Parliament intended for the entitlement to be suspended whilst an injured worker was absent from Australia, it would have used that term. That is because it is not the situation that there is a suspension, as such, whilst the worker is out of the country. Rather, the entitlement does cease in the same way as expressed in s 163(1). In contrast, the provisions referring to suspension - such as such as s 27(2) - all relate to apparently temporary situations where a worker has not done something required and is given an opportunity to rectify that.
Finally, for completeness, it follows that I must also reject the submission that Mr Philoraj’s entitlement ceases because he is ‘caught’ by all limbs of s 175, including s 175(2). As I have said, in my view, once no longer ‘absent from Australia’, an injured worker’s weekly payments entitlement is governed by the Act’s other provisions.
Conclusions
For the reasons provided, the 7 April 2021 notice is not set aside and I would dismiss the proceeding.
I have also concluded, for the reasons provided, that the entitlement to weekly payments is revived upon Mr Philoraj returning to live here in the sense of being subject to, and governed by, provisions of the Act other than s 175.
In his prayer for relief, Mr Philoraj claimed weekly payments for a period of about nine days beyond the period of his absence from Australia (until 8 November 2021). That the date on which he began work with another employer.
To my mind, Jobwire’s assertion that there was no reinstatement application (according to the FANOD) is probably correct. That is other than under s 175(3) for the period of absence from Australia.
Certainly, the 2 December 2021 letter relied upon by Mr Philoraj’s solicitors asserted that he was entitled to weekly payments because he had been ‘temporarily absent’ within the meaning of s 175(3).
In any event, if I am wrong about whether there had been a reinstatement application (other than under s 175(3)), I have also concluded, on the evidence to which I have referred in my reasons, that the request to reinstate weekly payments was not the subject of a formal decision.
Accordingly, the Court has no jurisdiction to decide such an application based on the Robinson[16] principle.
[16]Robinson v SPI Electricity Pty Ltd [2012] VMC 30.
I will hear from Counsel as regards to final orders.
MAGISTRATE HOARE
30 June 2023
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