Rawson v Coastal Management Group Pty Ltd - [2015] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3
APPELLANT:	Timothy Rawson
RESPONDENT:	Coastal Management Group Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-9136/13
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	30 October 2014
DATE OF APPEAL DECISION:	20 January 2015
SUBJECT MATTER OF DECISION:	Claim for weekly compensation from 17 September 2012 to 23 September 2014; claim made before 17 September 2012; whether entitlement periods for weekly compensation commence to run from date weekly compensation first paid or payable or from 17 September 2012; application of Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37; ss 33, 38 and 43 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; whether the Commission has jurisdiction to determine a claim for weekly compensation under s 38 of the Workers Compensation Act 1987 (as amended); meaning of “work capacity decision” considered; Lee v Bunnings Group Ltd [2013] NSWWCCPD 54 applied
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers

REPRESENTATION:

Appellant:

Law Partners Compensation Lawyers

Respondent:

Lee Legal Group

ORDERS MADE ON APPEAL:

1. The Arbitrator’s determination of 30 October 2014 is confirmed.

2. No order as to costs.

INTRODUCTION

This appeal raises two issues.
The first is when the entitlement periods introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) commence to run. If they run from the date on which weekly compensation was first paid or payable to the worker, as was held in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 (Kilic), the worker’s entitlement to weekly compensation, in the period in dispute, falls in the third entitlement period and is determined under s 38 of the Workers Compensation Act 1987 (the 1987 Act) (as amended by the 2012 amending Act).
The second is, if the worker’s entitlement to weekly compensation is determined under s 38, as amended, whether the Commission has jurisdiction to determine that claim. (Unless otherwise stated, all references to the 1987 Act in this decision are to the provisions of that Act as it has been amended by the 2012 amending Act.)

BACKGROUND

At about 3 am on 18 December 2004, the appellant worker, Timothy Rawson, suffered serious injuries when the truck he was driving, which was owned by the respondent, left the road and collided with a tree. He alleged that that accident occurred in the course of his employment because he had just picked up a spot welder from a friend for use in his work for the respondent.
Mr Rawson’s main injuries included, but were not limited to, a severe crush injury to his left foot, with multiple fractures involving the mid foot and the hind foot, and a significant rotator cuff injury to his right shoulder. Both conditions required major surgery.
The circumstances of the accident were, at some stage, accepted as giving Mr Rawson rights under the 1987 Act and the respondent employer’s insurer, Employers Mutual NSW Ltd (Employers Mutual), accepted liability and commenced payments of weekly compensation and hospital and medical expenses. Exactly when payments commenced is unclear, but Mr Rawson gave evidence that it was not until about 2007.
Sometime in 2009, Mr Rawson commenced proceedings in the Commission for lump sum compensation for whole person impairment as a result of his injuries. On 7 August 2009, an Approved Medical Specialist, Dr Bodel, assessed Mr Rawson to have a whole person impairment of 31 per cent as a result of his injuries.
On 20 August 2009, the Commission noted that the proceedings for lump sum compensation were discontinued and that the respondent agreed to pay Mr Rawson $55,000 in respect of a 31 per cent whole person impairment under s 66 of the 1987 Act and $30,000 compensation for pain and suffering under s 67. It is assumed that Employers Mutual has paid these amounts.
Employers Mutual continued to make voluntary payments of weekly and other compensation until, having disputed liability in late 2011, they ceased weekly payments on 27 January 2012. The notice declining liability in late 2011 is not in evidence.
In a letter dated 23 November 2011, Mr Rawson sought a review of the decision to dispute liability.
On 6 March 2012, Employers Mutual issued an amended notice under s 54 of the (unamended) 1987 Act in which it disputed liability for Mr Rawson’s claim on various grounds that are not relevant to the current appeal. Significantly, this notice did not dispute that Mr Rawson was incapacitated as a result of his injuries.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 2 December 2013, Mr Rawson claimed weekly compensation from 27 January 2012 to date and continuing.
On 16 December 2013, Employers Mutual issued a notice asserting that it had reviewed the decision made on 6 March 2012 and that it confirmed its earlier determination that Mr Rawson’s injury was not causally related to his employment with the respondent. The issues in dispute were said to relate to whether, at the time of the accident, Mr Rawson was on a periodic journey within the meaning of s 10 of the 1987 Act and, if so, whether he was guilty of serious and wilful misconduct under s 10(1B) because the ingestion of a prescribed drug had contributed to the accident. The notice did not dispute incapacity as a result of the injuries received in the accident.
On 3 April 2014, the respondent filed a Reply in which it sought “to include the following” as issues:
(a)     that Mr Rawson did not suffer injury which arose out of or in the course of his employment with the respondent;
(b)     that Mr Rawson’s employment was not a substantial contributing factor to the alleged injuries;
(c)     that Mr Rawson’s actions in driving the vehicle under the influence of drugs constituted “serious and wilful misconduct”, as contemplated by s 14 of the 1987 Act, and he was excluded from claiming compensation thereby, and
(d)     that Mr Rawson was precluded from claiming compensation in respect of “journey injuries” by reason of s 10(1B) of the 1987 Act (this issue was not pressed at the arbitration).
The Reply did not dispute that Mr Rawson was incapacitated as a result of the injuries received in the accident on 18 December 2004.
On 10 July 2014, the matter came on for arbitration before Arbitrator Foggo. Counsel for the respondent, Mr Greg Levick, conceded that reliance on s 10 was not available and that the issue was whether Mr Rawson’s injuries were solely attributable to his serious and wilful misconduct under s 14 of the 1987 Act and whether Mr Rawson had taken himself out of the course of his employment because of his use of amphetamines.
The contention that Mr Rawson was under the influence of drugs on the night of the accident was said to be supported by evidence from Associate Professor Starmer, pharmacologist, whose report was dated 12 February 2012. I note that criminal charges that, at the time of the accident, Mr Rawson drove while under the influence of alcohol or other drugs were withdrawn and dismissed in the Wyong Local Court on 6 February 2006.
The Arbitrator identified a threshold issue of whether, given that voluntary payments had been made for several years, the insurer was estopped from denying liability (Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387) and whether there was an abuse of process (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 80 ALJR 1100).
In brief extempore reasons, Arbitrator Foggo said that to allow the matters (in the Reply) to be litigated some six years after that course was available to the respondent was “unconscionable” (T32.21 – 10 July 2014), that the respondent was estopped from relying on the matters raised in its notice, and that the purported reliance on Associate Professor Starmer was an abuse of process.
Arbitrator Foggo started to make an order that the respondent pay Mr Rawson’s weekly compensation from 27 January 2012 when Mr Levick submitted that it did not follow that the insurer was required to resume weekly payments of compensation. Mr Levick added that he would speak to the insurer and indicated that the “declinature has been considered to be an abuse of process and it[’]s incumbent upon them [Employers Mutual] to now resume payments” (T35.22–10 July 2014), adding (correctly) that incapacity was “not in issue in the case” (T35.33–10 July 2014) and that he would need to get instructions. The transcript does not record if he obtained instructions.
The Commission issued a Certificate of Determination on 14 July 2014 formalising the orders made orally by the Arbitrator on 10 July 2014. The Certificate of Determination added that the parties were given liberty to apply in the event that further orders were sought. The respondent has not challenged this determination and I express no view on the Arbitrator’s findings or the orders made.
On 28 August 2014, Mr Rawson’s solicitors wrote to the Commission. He advised that the parties had not been able to resolve the issue of Mr Rawson’s entitlements and requested that the matter be set down for further arbitration.
The Commission listed the matter for further arbitration on 29 October 2014 before Arbitrator Harris. On that day, Mr Levick again appeared for the respondent and, as before, Mr Ross Stanton appeared for Mr Rawson. The insurer consented to the entry of awards in favour of Mr Rawson in the following amounts:
(a) $616.40 per week from 27 January 2012 to 31 March 2012, and
(b) $628 per week from 1 April 2012 to 16 September 2012.
(No admission was made as to whether these payments were made on the basis of total or partial incapacity.)
These amounts were calculated under the terms of the 1987 Act, as it stood prior to the amendments introduced by the 2012 amending Act. That was because, as Mr Rawson is a “seriously injured worker”, because he has a degree of permanent impairment that has been assessed for the purposes of Div 4 of the 1987 Act to be more than 30 per cent (s 32A of the 1987 Act), and as his claim was made before 17 September 2012, the weekly payments amendments introduced by the 2012 amending Act only applied to him on and from 17 September 2012 (cl 2 of Sch 8 of the Workers Compensation Regulation 2010).
Mr Levick informed the Arbitrator that the insurer had resumed weekly compensation payments to Mr Rawson, under s 38, from September 2014 (T43.19 and T52.3–6). Because of the resumption of payments from September 2014, the Application was amended to claim weekly compensation from 17 September 2012 to 23 September 2014 (the closed period).
The insurer disputed the Commission’s power to deal with this claim on the grounds that, as Mr Rawson had received weekly compensation in excess of 130 weeks, his entitlement to weekly compensation beyond 17 September 2012 fell to be determined under the amended s 38 of the 1987 Act (Kilic) and the Commission has no jurisdiction to determine entitlements under that section (Lee v Bunnings Group Ltd [2013] NSWWCCPD 54 (Lee)).
Exactly why Employers Mutual has not paid the closed period has not been explained in any documents in evidence in these proceedings. Nevertheless, it is clear that the insurer has determined to refuse to pay the closed period and only pay weekly compensation from 24 September 2014. This is significant and is the subject of comment later in this decision.
The Arbitrator noted (at T46.25) that the following matters were agreed:
(a)     Mr Rawson was not an “existing recipient” within the meaning of cl 1 of Pt 19H of Sch 6 to the 1987 Act;
(b)     Mr Rawson had (as at 17 September 2012) received more than 130 weeks of weekly compensation referrable to his injury, and
(c)     Mr Rawson was a “seriously injured worker” for the purposes of the 1987 Act.
The Arbitrator referred to a document from the insurer dated 17 October 2014 (exhibit A). This document is a notification from the insurer to Mr Rawson confirming an electronic funds transfer to Mr Rawson. Under “Payment Type Reference” the following appears:
“WPT007 S. 38(6) TOTAL >130 WKS”
The payment covered the period from 12 October 2014 to 18 October 2014 and was for $778.32 gross ($673.32 net). The document includes the claim number, Mr Rawson’s name and the name of the respondent. The Arbitrator inferred from exhibit A, and from an admission from Mr Levick that the insurer had been paying weekly compensation to Mr Rawson under s 38 since September 2014, that there had been “an assessment for the purposes of section 38(2) in or about September 2014” (T52.10). (Mr Levick having conceded this point at T43.16–28.)
Applying Kilic, as he was bound to do, the Arbitrator held that Mr Rawson’s entitlement to weekly compensation fell to be determined under s 38, which makes special requirements for the continuation of weekly payments after the expiration of the second entitlement period, that is, after the first 130 weeks of weekly compensation. He further held, applying Lee, that he had no jurisdiction to determine Mr Rawson’s entitlement under s 38 and he made no order in respect of the claim for weekly compensation from 17 September 2012 to 23 September 2014.
The Commission issued a Certificate of Determination on 30 October 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
By consent
1.I grant leave to the Applicant to amend the Application at Part 5.1 to delete the words “date and continuing” and insert “23 September 2014”;
2.     The Respondent pay the Applicant weekly compensation as follows:
(a)     $616.40 per week from 27 January 2012 to 31 March 2012; and
(b)     $628 per week from 1 April 2012 to 16 September 2012.
Contested
3.I make no order in respect of the claim for weekly compensation for the period from 17 September 2012 to 23 September 2014.” (emphasis included in original)
Mr Rawson has appealed. For the reasons explained below the appeal is unsuccessful.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) concluding that he did not have jurisdiction to award weekly compensation under s 38, and
(b) concluding that he did not have jurisdiction to award weekly compensation under s 38 for any period before the worker had been assessed by the insurer for the purposes of s 38(2).
A further issue is whether Kilic is wrong. It is convenient to deal with that issue first.

KILIC

The principal issue in Kilic was when the entitlement periods introduced in the 2012 amending Act commence to run. If they ran from the date on which weekly compensation was first paid or payable to Ms Kilic, as the Arbitrator found, the worker’s entitlement to weekly compensation under the amended s 37 expired on 26 July 2013. If they ran from 1 January 2013, as argued by the appellant worker, her entitlement to weekly compensation under the amended s 37 would not expire until 2 July 2015.
As Ms Kilic was not an existing recipient of compensation as at 1 October 2012 and had claimed compensation prior to that date, it was held (at [47]) that, for the purpose of the application of the weekly payments amendments introduced by the 2012 amending Act, a reference in Div 2 of Pt 3 of the 1987 Act to “a period in respect of which a weekly payment has been paid or is payable” included such a period that occurred before 1 January 2013, being the date on which the weekly payments amendments applied to Ms Kilic.
It was further held (at [53]) that the combined effect of s 32A of the 1987 Act and cl 9(4) of Pt 19H of Sch 6 was that the entitlement periods commence at the time when weekly compensation has been paid or is payable and includes periods before the commencement of the amendments. That is, in that case, before 1 January 2013. Even if that view were wrong, it was held (at [54]–[55]) that there is a distinction between the calculation of the quantum of weekly “compensation payable” (which, in Ms Kilic’s case, was dealt with in ss 36 and 37) and the calculation of when the entitlement periods commence to run.
The calculation of the commencement of the entitlement periods is dealt with in s 32A and, in Ms Kilic’s case, that section did not apply until 1 January 2013. However, when it applied, it applied according to its terms by reference to the period “in respect of which a weekly payment has been paid or is payable to the worker” (see the definition of the “first entitlement period” and “second entitlement period” in s 32A). It was not restricted to payments made after 1 January 2013, but applied to compensation “paid or payable”. Unless otherwise stated in the 1987 Act or the transitional provisions, that included payments made before 1 January 2013.
In the present appeal, Mr Stanton, who also appeared for Ms Kilic, submitted, both at the arbitration and on appeal, that Kilic was wrong. However, other than stating that he relied on the submissions he made in Kilic, he made no further submissions in support of that assertion. He did not suggest that there are any relevant factual differences between the present case and Kilic that would justify a different outcome or would suggest that the reasoning in Kilic should not apply to Mr Rawson.
In these circumstances, for the reasons given in Kilic, I reject Mr Stanton’s submission that that case was wrongly decided and I determine that the calculation of when Mr Rawson’s entitlement periods commence to run is from the date on which weekly compensation was first “paid or payable” to him. As that date was in or about 2004 or 2007, it follows that, as at 17 September 2012, Mr Rawson had been paid in excess of 130 weeks of weekly compensation and his entitlement to weekly compensation from that date falls to be determined in the third entitlement period, that is, under s 38 of the 1987 Act, as amended.
If the calculation of the entitlement periods commence, as Mr Stanton contended, on 17 September 2012, then Mr Rawson’s weekly compensation would, for the first 13 weeks after that date, be calculated under s 36 and, then, for the next 117 weeks, under s 37. In other words, he would be compensated as if he had not previously received weekly compensation. For the reasons given in Kilic, that approach is not open. This leads to the main issue in dispute, namely, the Commission’s jurisdiction to hear and determine a claim for compensation under s 38.

THE COMMISSION’S JURISDICTION UNDER S 38

The legislation

Sections, 33, 38 and 43 of the 1987 Act provide:
“33   Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note. Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.
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 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.

(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 WorkCover Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker 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.

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 44 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.”

Submissions

Mr Stanton submitted that exhibit A evidences that Mr Rawson is now being paid under s 38. Therefore, it is apparent that “the insurer” had “assessed” Mr Rawson “as having no current work capacity” and that this was “likely to continue indefinitely”. He said that it was reasonable to infer that this decision was probably made at about the time the weekly payments were recommenced on 25 September 2014.
Mr Stanton drew attention to s 105(1) of the 1998 Act, which provides that the Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act”, and submitted that there is nothing in s 38 that specifically removes any jurisdiction from the Commission. This can be contrasted with s 43(3) of the 1987 Act, which removes the Commission’s jurisdiction with respect to disputes about work capacity decisions.
Hence, so it was argued, the only statutory obstacle to obtaining compensation under s 38 for a worker who has “no current work capacity” is that the worker has to be “assessed by the insurer as having no current work capacity” (and that this) “is likely to continue indefinitely”. In Mr Rawson’s situation, this statutory obstacle has been removed and he is “entitled to [weekly] compensation after the second entitlement period”.
As there is no specific removal of jurisdiction, the Commission has exclusive jurisdiction to “examine, hear and determine” the matter of whether Mr Rawson should be paid weekly compensation benefits from 17 September 2012 to 23 September 2014 under s 38.
Mr Stanton contended that Lee can be distinguished because, in that matter, the “pre-conditions to the assessment of an entitlement under s 38 had not been satisfied” (Lee at [60]). In the present matter, the relevant pre-condition is an assessment for the purposes of s 38(2) and the insurer has conducted that assessment.
Mr Stanton argued that “assessed” in s 38(2) does not have to be a s 32A or s 44A “work capacity assessment”. The defined term “work capacity assessment” appears in s 38(5), which suggests that the reference to “assessed” in s 38(2) is a broader concept. If it were intended that an assessment for the purposes of s 38(2) had to be a “work capacity assessment”, the legislature could easily have provided for that by using the term “work capacity assessment”. Instead, it used another term.
Further, s 38(5) provides that a “work capacity assessment” cannot be conducted for a “seriously injured worker … unless the worker requests it”. Hence, some workers can prevent a “work capacity assessment” from ever being carried out. In this context, it is sensible that a s 38(2) assessment is a different and broader concept than a “work capacity assessment”.
On the issue of whether the Commission had jurisdiction to hear and determine s 38 claims relating to any period before the insurer had made an assessment for the purposes of s 38(2), Mr Stanton contended that nothing in the legislation so limited the Commission’s jurisdiction and it was useful to note the scope of the Commission’s jurisdiction to deal with s 38 issues would also involve the consideration of other matters such as disputes about the level of average weekly earnings.
Mr Stanton submitted that the Arbitrator erred in determining that he had no jurisdiction under s 38 because:
(a) for workers with “no current work capacity” the only provision which can affect the Commission’s “exclusive jurisdiction to examine, hear and determine all matters arising under” the 1987 Act and the 1998 Act, is s 38, and
(b) once a s 38(2) assessment is performed, the pre-condition for the assessment of an entitlement under s 38 for workers with “no current work capacity” has been satisfied.
Mr Stanton also relied on the above submissions in support of the second ground of appeal, namely, whether the Commission has jurisdiction to award weekly compensation under s 38 for any period before an assessment has been made for the purpose of s 38(2). He added that once there is no barrier (or “pre-condition”, as is was described in Lee) to the exercise of the Commission’s exclusive jurisdiction, the statutory jurisdiction provided by s 105 “to examine, hear and determine all matters arising under” the 1987 Act and the 1998 Act is not constrained by arbitrary points in time.
Mr Stanton contended that the words in s 38 contemplate that a worker’s entitlement to weekly payments under that section can pre-date a s 38(2) assessment. That is because s 38(1) deals with weekly payments ceasing “on the expiry of the second entitlement period unless the worker is entitled to compensation” under s 38. Thus, the entitlement under s 38, if it exists, is one which commences immediately after the expiry of the 130 week second entitlement period, not some later point – when the insurer gets around to making a s 38(2) assessment.
It was suggested that s 33 is also significant. It provides that injured workers should be paid weekly compensation under the Act during “incapacity”. Mr Rawson obviously had an “incapacity” over the period from 17 September 2012 to 23 September 2014 and he is entitled to compensation over that period.
Mr Stanton said that it was instructive to consider the term “examine” in the context of the Commission’s jurisdiction to “examine, hear and determine all matters arising under this Act and the 1987 Act”. Dealing with s 38, he said that there could conceivably be matters where, for example, there is a dispute about whether a worker has made a s 38(3)(a) application to an insurer “in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period”. Whether that had occurred was a matter, so it was argued, “arising under … the 1987 Act” and the Commission would have jurisdiction to “examine … and determine” whether a worker had sent his s 38(3)(a) application too early. In doing this the Commission would be dealing with a s 38 issue. This is illustrative that the Commission has jurisdiction to examine, hear and determine s 38 issues.
Mr Stanton further contended that it was not accurate to analyse s 38 in terms of whether the Commission has jurisdiction. He submitted that it was more helpful to consider it in terms of whether a worker has an entitlement to weekly benefits under s 38. Most workers will not, but if they do, the Commission’s jurisdiction enables it to examine, hear and determine disputed matters relating to that entitlement. It is more appropriate to analyse matters such as s 38 in terms of whether the pre-conditions to the potential statutory entitlement are satisfied. The Commission’s jurisdiction is not contingent on the pre-conditions occurring.
The respondent’s solicitor, Mr Stephen Lee, submitted that s 38 provides for the continuation of weekly payments to a worker after the second entitlement period if certain pre-conditions are met. Those pre-conditions each involve a decision which is solely within the “province of the insurer”. It is the determination of work capacity that is the “work capacity decision”. That determination is made by the insurer and 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 (s 43(3)).
Mr Lee submitted that the determination of work capacity and subsequent entitlement to weekly payments is solely within the province of the insurer and not the Commission. The Commission is governed by statute and has no power to substitute its own decision for that of an insurer with respect to s 38 (Lee at [57]).

Discussion and findings

I do not accept Mr Stanton’s submissions.
I accept that, as the Arbitrator inferred, on a date in or about September 2014, the insurer “assessed” Mr Rawson “as having no current work capacity” and that that was “likely to continue indefinitely”. This follows from the fact that, as exhibit A demonstrates, Employers Mutual is paying Mr Rawson under s 38(2) and, based on Mr Levick’s admissions, has done so since September 2014. However, the acceptance of that proposition, which is clearly correct, is one of the reasons why Mr Rawson cannot succeed with his claim.
At the arbitration, Mr Stanton submitted (at T20.17) that there was no evidence there had been any “work capacity decision” in relation to Mr Rawson. That was not correct. A work capacity decision is a decision of an insurer “about a worker’s current work capacity” (s 43(1)(a)) and, among other things, “any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation” (s 43(1)(f)).
Thus, the insurer’s decision, made shortly before 24 September 2014, that Mr Rawson had “no current work capacity” and that that was “likely to continue indefinitely” was the insurer’s work capacity decision. That is because it was a decision about Mr Rawson’s current work capacity.
More importantly, the insurer’s decision to pay weekly compensation from 24 September 2014 and, critically, not to pay weekly compensation from 17 September 2012 to 23 September 2014 was “a decision of an insurer that” has affected Mr Rawson’s “entitlement to weekly payments of compensation” in the period concerned. Thus, it was a work capacity decision. It makes no difference that Employers Mutual has (apparently) failed to give any reasons for not paying Mr Rawson in the closed period. (I note that the failure to notify a worker in writing of a work capacity decision and to “explain the outcome” is a clear breach of cl 5.3 of the WorkCover Authority of New South Wales Guidelines for Work Capacity Decision Internal Reviews by Insurers and Merit Reviews by the Authority, issued by special supplement in the Government Gazette dated 8 October 2013.)
As Mr Rawson seeks to challenge the insurer’s decision not to pay weekly compensation from 17 September 2012 to 23 September 2014, that is, he seeks to challenge a work capacity decision that he has no entitlement to weekly compensation in that period, the Commission does not have jurisdiction to determine the dispute or make a decision that is inconsistent with the insurer’s work capacity decision (s 43(3)).
That is because a decision by the Commission that Mr Rawson is entitled to weekly compensation between 17 September 2012 and 23 September 2014 would be inconsistent with the insurer’s work capacity decision that he is not entitled to be paid in that period. Section 105 of the 1998 Act does not overcome the clear restriction on the Commission’s jurisdiction in s 43(3).
Even if the insurer’s decision not to pay Mr Rawson weekly compensation in the closed period is not a work capacity decision, the terms of s 38 do not support Mr Stanton’s submissions.
Section 38(1) states that a worker’s entitlement to weekly compensation payments under Pt 3 (of the 1987 Act) “ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section”. A worker 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 (s 39(2)).
Thus, the clear terms of s 38 are that the entitlement to compensation after the second entitlement period is dependent upon the insurer’s work capacity decision. If the insurer has incorrectly determined that entitlement, by either wrongly calculating the amount of the compensation payable or, as in the present case, by determining that no weekly compensation is payable in a particular period, the worker has the right to seek a review in the circumstances outlined in s 44, or a judicial review in the Supreme Court.
This conclusion is consistent with Lee, where the President, Keating DCJ, said, at [57], that “[i]t is clear from the unambiguous terms of s 38 that an entitlement to compensation under that section must be assessed by the insurer, not by the Commission”.
I agree that “assessed” in s 38(2) does not have to be a “work capacity assessment”, which is defined in s 44A. In any event, as Mr Rawson is a “seriously injured worker” the insurer was entitled to make a work capacity decision about him without conducting a work capacity assessment (s 38(5)). Moreover, a “work capacity assessment” is not necessary for the making of a work capacity decision by an insurer (s 44A(3)). However, for the reasons outlined above, that does not assist Mr Rawson. The insurer has made a “work capacity decision” that has affected Mr Rawson’s entitlement to weekly compensation and the Commission does not have jurisdiction to make a decision that is inconsistent with that decision.
It is not correct that, for workers with no current work capacity, the only provision that can affect the Commission’s exclusive jurisdiction to examine, hear and determine all matters arising under the 1987 Act and the 1998 Act is s 38. The insurer made a work capacity decision and Mr Rawson now seeks orders from the Commission inconsistent with that decision. The Commission has no power to make such orders (s 43(3)).
I also agree with Mr Stanton’s submission that a worker’s entitlement to weekly compensation pre-dates the date of the work capacity decision. If that were not so, an insurer who delayed the making of a work capacity decision could obtain a windfall through its tardiness. While s 38(4) provides a time within which a “work capacity assessment” must be conducted, it does not provide a time within which a “work capacity decision” must be made. However, that fact does not mean that a worker has no entitlement to weekly compensation in the period prior to the date of the work capacity decision.
There will often be a delay between the date from which weekly compensation is sought and the date of the work capacity decision. That is especially so in cases where, as in Mr Rawson’s situation, there is no obligation to conduct a work capacity assessment. It is only logical that the work capacity decision should apply from the date from which weekly compensation is claimed and not from the date of the work capacity decision.
This follows as a matter of basic fairness, but also from the terms of s 38, which provide that the entitlement to weekly compensation at the expiration of the second entitlement period, if it exists, commences “after the second entitlement period”. As a matter of statutory construction, having regard to the text and the context of the legislation, this can only mean “immediately after the second entitlement period”.
Any other interpretation would leave the worker without any weekly compensation until the insurer got around to making a work capacity decision. That is not the intention of the legislation, as gleaned from the words used. Notwithstanding the restrictions in the provisions introduced by the 2012 amending Act, the legislation remains beneficial and requires a beneficial construction, if open, in favour of the injured worker, though that does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [29]).
That a work capacity decision applies from the date from which weekly compensation is claimed is consistent with s 33, a section that was not amended by the 2012 amending Act. That section provides that if “total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity”. In other words, compensation is payable for the period of the incapacity.
However, s 33 does not support Mr Stanton’s broader submission that the Commission has jurisdiction in the present matter. That is because the weekly payment to which Mr Rawson is entitled must now be determined under the new regime introduced by the 2012 amending Act. That regime does not use the terms “total” or “partial” incapacity. Moreover, it gives the power to make work capacity decisions to insurers, subject to review in the circumstances allowed in s 44.

I assume that Employers Mutual has not paid Mr Rawson’s closed period because it did not make a work capacity decision until shortly before 24 September 2014. As its decision was that Mr Rawson had “no current work capacity” and as that expression is defined to mean “a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment” (s 32A), it seems that the insurer has decided that the phrase “present inability” dictates that a work capacity decision can only apply from the date it is made. That is patently incorrect.
The expression “present inability” relates to the time from which the weekly compensation is sought and requires a decision about a worker’s “current work capacity” that applies at and from that time, even though the work capacity decision may not be made until a later time. Any other interpretation leads to workers being denied compensation because of the insurer’s delay in making the work capacity decision. In the present claim, an assessment of Mr Rawson’s “current work capacity” had to be made from the date on which the new provisions applied to him, that is, from 17 September 2012, having regard to the available evidence. The fact that the work capacity decision was not made until September 2014 does not change that fundamental requirement.
There are at least two cogent reasons why Mr Rawson’s “current work capacity” was the same in September 2012 as it was in September 2014. First, he was assessed in 2009 as having a permanent whole person impairment of 31 per cent as a result of his work injuries and there is no evidence that that assessment has changed. Second, Mr Rawson’s nominated treating doctor, Dr Theron, in a WorkCover certificate dated 2 May 2013, assessed Mr Rawson to have no current work capacity from that date until 4 June 2013 because of post-traumatic stress disorder and physical restrictions from his left ankle and right shoulder injuries. There is no suggestion that this restriction changed in any relevant way, either before or since 2 May 2013.
It follows that, on the balance of probabilities, Mr Rawson’s “current work capacity” in September 2012 was the same as it was in September 2014. Therefore, he is clearly entitled to weekly compensation in the closed period claimed. That compensation should be calculated on the same basis as the calculation made in September 2014, that is, under the new s 38. However, for the reasons explained above, the Commission has no power to order the insurer to make the payments to which Mr Rawson is clearly entitled.
In view of the conclusion I have reached about Employers Mutual’s work capacity decision, and the effect of s 43(3), it is not necessary to deal with Mr Stanton’s further submissions.

OTHER MATTERS

The conduct of Employers Mutual in this matter requires comment.
In the second reading speech on the introduction of the Workers Compensation Legislation Amendment Bill 2012, The Hon Mike Baird, Treasurer, said, at page 13014 on 19 June 2014:
“The Workers Compensation Legislation Amendment Bill represents a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme while strongly incentivising return to work for those workers who have the capacity to return to work. The Government is committed to ensuring that the income, support and treatment needs of seriously injured workers are met, and the bill will increase the weekly benefits paid to the most seriously injured workers while ensuring such workers have benefits until retirement if they cannot return to work.”
The Treasurer emphasised that the most seriously injured workers would be better off under the Bill, and that “[o]ne of the key goals of the Government is to ensure seriously injured workers receive improved benefits if they cannot work”. He concluded that the reforms represent an “integrated package of reforms that will assist and encourage workers who have work capacity to return to work, while continuing to support and assist seriously injured workers”. While a worker who has a work capacity and is not working at least 15 hours per week by the end of the 130-week period would cease to be entitled to weekly benefits, a worker with no work capacity would “continue to receive benefits of up to 80 per cent of their pre-injury average weekly earnings”.
Against this background, and bearing in mind that Mr Rawson is a “seriously injured worker”, Employers Mutual’s general handling of this matter has been most unsatisfactory, to say the least, and will be referred to WorkCover for investigation. Employers Mutual has provided no reason for not paying the disputed closed period and, on the evidence available, there is no valid reason why it has not paid the claim.

CONCLUSION

Mr Stanton has not presented any argument in support of his submission that Kilic was wrongly decided and, for the reasons given in that decision, I decline to reverse it. The application for weekly compensation in the closed period concerned invites the Commission to make a decision that would be inconsistent with a work capacity decision of an insurer. Section 43(3) prevents the Commission from making such a decision.

DECISION

The Arbitrator’s determination of 30 October 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Acting President

20 January 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE