Reale v Wesfarmers Kleenheat Gas Pty Ltd [No 2]
[2016] WADC 153
•31 OCTOBER 2016
REALE -v- WESFARMERS KLEENHEAT GAS PTY LTD [No 2] [2016] WADC 153
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 153 | |
| Case No: | CIV:1279/2014 | 20 JUNE & 27-28 OCTOBER 2016 | |
| Coram: | STEVENSON DCJ | 31/10/16 | |
| PERTH | |||
| 34 | Judgment Part: | 1 of 1 | |
| Result: | 1. Preliminary issue determined in favour of the plaintiff on the basis she made her election to retain the right to seek damages before the termination day 2. Appeal dismissed | ||
| PDF Version |
| Parties: | LUISA MARINA REALE WESFARMERS KLEENHEAT GAS PTY LTD |
Catchwords: | Workers' compensation Extension of the termination day for an election to retain the right to seek damages First notification of acceptance of liability by employer When claim for weekly compensation made Notice of occurrence of the injury Whether election to retain right to seek damages made before the termination day Whether extension of the termination day by the Director's Delegate is valid |
Legislation: | Workers' Compensation and Injury Management Act 1981 s 57A, s 57B, s 57C, s 93K, s 93L, s 93M, s 93O, s 178, s 179 Interpretation Act 1984 s 17 Workers' Compensation and Injury Management Regulations 1982 reg 6AA(1) |
Case References: | Glenn v Compass Group (Australia) Pty Ltd [2014] WADC 86 Newcrest Mining v Thornton [2012] HCA 60; (2012) 248 CLR 555 Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355 Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5 Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WESFARMERS KLEENHEAT GAS PTY LTD
Defendant
Catchwords:
Workers' compensation - Extension of the termination day for an election to retain the right to seek damages - First notification of acceptance of liability by employer - When claim for weekly compensation made - Notice of occurrence of the injury - Whether election to retain right to seek damages made before the termination day - Whether extension of the termination day by the Director's Delegate is valid
Legislation:
Workers' Compensation and Injury Management Act 1981 s 57A, s 57B, s 57C, s 93K, s 93L, s 93M, s 93O, s 178, s 179
Interpretation Act 1984 s 17
Workers' Compensation and Injury Management Regulations 1982 reg 6AA(1)
Result:
1. Preliminary issue determined in favour of the plaintiff on the basis she made her election to retain the right to seek damages before the termination day
Representation:
Counsel:
Plaintiff : Mr E J Myers
Defendant : Mr B L Nugawela & Mr C H Eklund
Solicitors:
Plaintiff : Stephen Browne Lawyers
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Glenn v Compass Group (Australia) Pty Ltd [2014] WADC 86
Newcrest Mining v Thornton [2012] HCA 60; (2012) 248 CLR 555
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355
Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75
1 STEVENSON DCJ: This is a trial of a preliminary issue which arises out of an appeal from a decision Principal Registrar Melville made on 21 January 2016 dismissing an application by the defendant (Wesfarmers) to dismiss the plaintiff's action on the basis that this court does not have jurisdiction to award damages.
2 The plaintiff (Ms Reale) issued a writ against Wesfarmers on 24 April 2014 seeking damages for injuries alleged to have been suffered on 16 February 2012 in the course of her employment with Wesfarmers.
3 Wesfarmers accepts that Ms Reale was injured at work on that day.
4 The issue to be determined is whether Ms Reale has lawfully elected to retain the right to seek damages under s 93K(4)(a) of the Workers' Compensation and Injury Management Act 1981 (the Act).
5 It is common ground that such an election cannot, as a matter of law, be made after 'the termination day'. Accordingly, if the election by Ms Reale was made after the termination day this court does not have jurisdiction to award damages, and the action must be dismissed.
6 Therefore, it is necessary by reference to the parties agreed facts and list of trial documents, to calculate the date which constitutes 'the termination day' in accordance with s 93M of the Act and to determine if Ms Reale made her election to retain the right to seek damages before that date.
7 To some extent, both parties seek to advance their contentions with the benefit of hindsight, by placing a different construction on the purpose and effect of their conduct, including various documents and forms created by them.
8 In my opinion, for the reasons which follow, the preliminary issue must be determined in a way that results in the appeal being dismissed.
Agreed facts
9 On the first day of the hearing of the appeal, the parties agreed that the matter in dispute could best be determined as a trial of a preliminary issue. To facilitate the determination of the matter the parties, filed a statement of agreed facts and bundle of documents. On the basis of this material, there is no dispute about the following matters.
10 Wesfarmers is a self-insured employer for the purpose of s 57B of the Act.
11 Ms Reale sustained a neck injury in the course of her employment with Wesfarmers on 16 February 2012 (with whom she had been employed about 10 years). She verbally reported the injury to her supervisor at the time.
12 At the time of the incident Ms Reale was assisting a customer, as part of her work duties, to lift a replacement household propane gas cylinder onto a trailer. Prior to loading the cylinder, Ms Real rolled the cylinder to the vehicle on the ground using both hands. When full, gas cylinders weigh 90kg.
13 The following day, 17 February 2012, Ms Reale attended Dr Krishna, a general practitioner at the Riseley Medical Centre as a result of symptoms from the injury. She described the symptoms as 'a bad muscle strain in the left shoulder'. She was given painkiller and anti-inflammatory medication and told that if she did not improve to return for an MRI.
14 Ms Reale did not attend work on 22, 23 and 24 February 2012.
15 Because her symptoms did not abate, at the suggestion of her employer, she consulted Wesfarmers preferred medical practice and obtained an appointment on 24 February 2012. Dr Miller of Medibank Solutions provided Ms Reale with a 'Workers' compensation FIRST medical certificate' (form 3) dated 24 February 2012 which certified her fit for 'light admin duties only'. The same medication was continued.
16 During the time taken off, Ms Reale received payments from Wesfarmers as recorded in her payslip dated 29 February 2012. Wesfarmers records did not identify the payments as workers' compensation.
17 On or about 2 March 2012, Ms Reale provided Wesfarmers with the first medical certificate and a 'workers' compensation claim form' (form 2B). The form was partially completed by Ms Reale and Wesfarmers and is dated 2 March 2012. The form contains Ms Reale's details, a report of how 'the occurrence' on 16 February 2012 happened and a declaration and consent authority.
18 Also on 2 March 2012, Ms Reale signed an authority to use sick/annual leave while a decision was being made by Wesfarmers whether to accept liability for her claim.
19 Also on or about 2 March 2012, Wesfarmers offered to reimburse Ms Reale for medical expenses, travel expenses and time off work and provided her with a form to complete to give effect to the offer. She declined the offer and did not complete the form.
20 After her absence from work on 22 – 24 February 2012 Ms Reale continued to attend work, but it is in dispute whether she worked in accordance with her light duties certification. It is not necessary for present purposes to make any finding in this regard.
21 Ms Reale was absent again from work between 6 – 21 April 2012. During this period, she received payment as recorded in her payslip dated 30 April 2012. Wesfarmers payslip did not attribute any part of the payments to payments of workers' compensation.
22 After an MRI scan, Ms Reale was diagnosed with a likely C5/6 disc protrusion, LC 6 nerve root impingement, left hand paraesthesia and a C6/7 disc bulge. She was scheduled for surgery on 12 July 2012.
23 As mentioned, Wesfarmers is a self-insured employer and an independent entity forming part of Wesfarmers Limited. A sub-group entitled 'Wesfarmers Group WorkCover' administers the workers compensation claims.
24 On or about 15 March 2012, Wesfarmers Group WorkCover sent to Ms Reale and to Wesfarmers Kleenheat Gas (Ms Reale 's employer) an insurer's notice that liability is accepted (form 3A) in respect of reasonable medical expenses for the injury sustained by the work accident on 16 February 2012.
25 On 13 June 2012, Ms Reale was certified totally unfit for work by a progress medical certificate.
26 By a further insurer's notice that liability is accepted (form 3A) dated 28 June 2012 sent only to Wesfarmers Kleenheat Gas (not Ms Reale), Wesfarmers Group WorkCover notified Ms Reale's employer that liability is accepted in respect of weekly payments and reasonable medical expenses. The notice also advised 'that for the initial thirteen week period of lost time for work as a result of this injury, the rate of weekly compensation will be $744.30 and will be $590 per week for any subsequent period of time lost beyond the initial 13 weeks'.
27 It is common ground that it is not known whether the Wesfarmers Group WorkCover notice of 28 June 2012 was provided to Ms Reale. It can, however, be inferred that on a date unknown, but after 28 June 2012, she was made aware that liability to pay 'weekly payments and reasonable medical expenses' was accepted by her employer, Wesfarmers.
28 Consistent with acceptance of liability for Ms Reale's workers' compensation claim, Wesfarmers gave a 'notice to worker about termination day for election' under s 93O of the Act (form 36) dated 17 August 2012. The notice purported to inform Ms Reale of important information as prescribed by s 93O(1) of the Act. Relevantly, the notice stated: 'Your termination day for this injury is 03/03/2013, which is about 6 months away'.
29 It is a live issue in these proceedings whether the notice dated 17 August 2012 (the Form 36 notice) discharged Wesfarmers' obligations to Ms Reale under s 93O of the Act. In summary, Wesfarmers asserts it did and the termination day was 3 March 2013. On the other hand Ms Reale contends, the termination day was a date on or after 28 March 2013, as a result of the operation of s 93M(3) of the Act and therefore the Form 36 notice was null and void.
30 Ms Reale sought an extension of the termination date by an application to extend the termination day dated 13 March 2013 (form 35), on the basis that her condition had not stabilised. This application was refused by the Director of WorkCover WA on 15 March 2013 because the AMS certification filed in support was dated 5 March 2013, and did not, as required by s 93M(4)(a), certify the position prior to the termination day (which on the known information at this time was considered to be 3 March 2013). The correctness of this decision is not relevant to the issue in these proceedings, but is mentioned as part of the timeline.
31 By an application to extend the termination day dated 14 February 2014 (form 35), Ms Reale sought an extension of the termination day to 31 July 2014 on the basis that Wesfarmers (her employer) had failed to comply with s 93O of the Act. This application was granted by the Director's delegate on 19 February 2014, who thereby purported to extend Ms Reale's termination day to 28 March 2014 (not 31 July 2014).
32 Ms Reale's application to extend the termination day was accompanied by a solicitors' letter dated 14 February 2014 which provided as follows:
We attach the following:
1. Form 3A dated 15 March 2012, issued in respect of medical expenses only.
2. Form 3A dated 28 June 2012, accepting liability for weekly payments of compensation.
3. Form 36, issued pursuant to Section 93O of the Act.
It seems that the termination date as stated on the Form 36 was calculated on the basis of the Form 3A issued and dated 15 March 2012. However, as noted above, that Form 3A is only in respect of reasonable medical expenses.
The Form 3A dated 28 June 2012 accepting liability for weekly payments of compensation was issued more than three months after the date the claim was made and accordingly, in our respective view, the Form 36 does not state the correct termination date. The correct termination date should have specified 28 March 2013 (9 months from the date of the notice of acceptance of liability for weekly payments of compensation). [emphasis added]
For the reasons outlined above, the Form 36 was defective. We herewith file a Form 35 application to extend termination day dated 6 February 2014. You will note that we have specified therein that we seek an extension of the termination date to 31 July 2014. We wish to point out that our client is undergoing a further evaluation on 18 February 2014 and in the event that she is deemed still not to have achieved maximum medical improvement we seek sufficient time to allow our client to undergo a special evaluation. Surgery was recommended in late 2013 and as yet it has not occurred and for that reason she may not be MMI. The date 31 July 2014 has been stated as the date specified until the extension is sought.
We refer to Section 93O of the Act whereby we note it states as follows:
'(4) The Director may, in accordance with the regulations, from time to time extend the termination day, but only if –
...
(b) The Director is satisfied that the employer has failed to comply with Section 93O.
…
(6) An extension under subsection (4) is to be a day that is not more than one year after the day … except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election'(our emphasis).
Yours faithfully
33 It will be appreciated that the application was therefore based on two separate grounds, acting in combination and cumulatively on each other, found within s 93M(4). First, s 93M(4)(b) – the employer failed to comply with s 93O. Secondly, s 93M(4)(d) – further time for medical assessment.
34 On the basis that the Director of WorkCover had extended her termination day to 28 March 2014, Ms Reale purported to elect to retain her right to seek damages under s 93K(4) of the Act by filing a notice dated 5 March 2014 (form 34).
35 The notice of election was received by WorkCover on 6 March 2014 and formally registered under signature of the Director's delegate on 12 March 2014.
The decision of the Director's delegate on 19 February 2014
36 The Director's delegate (Ms K Holdsworth) explained the reasons for her decision in a letter dated 19 February 2014 to Ms Reale's lawyers, copied to Wesfarmers and its lawyers. Relevantly, it stated:
I am satisfied that the provisions of section 93M(4) of the Workers' Compensation and Injury Management Act 1981 ('the Act') and regulation 23 of the Workers' Compensation and Injury Management Regulations 1982 have been properly applied.
Based on the information before me, I calculate your original termination day to be 28 March 2013, being nine (9) months after you were first notified that liability was accepted in respect of weekly payments and in accordance with section 93M(3) of the Act. It therefore appears the Form 36 contains an anomaly, as it states the termination day as 3 March 2013.
I note however that you have requested your termination day be extended until 31 July 2014. I therefore draw your attention to section 93M(6) of the Act which states:
An extension under subsection (4) is to be a day that is not more than one year after the day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
As this application has been lodged under section 93M(4)(b) of the Act, and your original termination day was 28 March 2013, the latest date an extension can be granted until is 28 March 2014. I have therefore granted an extension of the termination day for you to make an election pursuant to section 93K(4)(a) of the Act until 28 March 2014.
Enclosed is a copy of the endorsed application. A copy has also been provided to your employer.
Yours sincerely
37 In short, the delegate applied s 93M(3)(b) of the Act to calculate Ms Reale's termination day as 28 March 2013. 28 March 2013 is nine months after the first known direct written evidence from Wesfarmers Group WorkCover that it accepted liability for the weekly payments claimed. This is to be found in its form 3A notice dated 28 June 2012 addressed to its business entity, Wesfarmers Kleenheat Gas (Ms Reale's employer).
38 It can be inferred that this is the first and earliest possible date on which Ms Reale could have been 'notified' that Wesfarmers formally accepted liability for her workers' compensation claim.
39 The delegate then relied on s 93M(6) of the Act to limit the time of the extension (her discretion to do so under s 93M(4)(b) having been enlivened by reason of Wesfarmers failure to comply with the notice provisions of s 93O) 'to be a day that is not more than one year after the day that would have been the termination day had there been no extension'. The delegate was not therefore prepared to extend the termination day beyond the 12 month period and fixed the date as 28 March 2014.
40 I note the delegate was not required to determine the factual controversy of whether Ms Reale made a 'claim for compensation by way of weekly payments' (s 93M) on 2 March 2012, but assumed the existence of the claim.
The decision of Principal Registrar Melville on 21 January 2016
41 The matter initially came before me by way of a notice of appeal dated 29 January 2016 filed by Wesfarmers against the decision of Principal Registrar Melville in Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5.
42 The learned principal registrar refused Wesfarmers application to dismiss Ms Reale's action for want of jurisdiction by this court to award damages on the basis that Ms Reale made her election to retain the right to seek damages before the termination day as required by s 93L(4) of the Act.
43 Accordingly, the primary issue in the appeal concerns the proper calculation of the date of 'the termination day' for Ms Reale's claim under the Act.
44 It is necessary to refer to following parts of the learned principal registrar's judgment that deal with the issues raised by the notice of appeal.
20 Section 93M(1) establishes an initial termination date, but the date may be extended should s 93M(3) or s 93M(4) have cause to operate. This, it seems to me, is consistent with the decision of Corboy J, found in the transcript provided to me by counsel for Kleenheat in Bush Goldman v Damian Stewart as Director of WorkCover (WA) (Supreme Court of Western Australia CIV 1016 of 2014 delivered 27 December 2013[sic]) in which his Honour said at page 20:
This is how I interpret 93M(1), Mr Nugawela: it fixes a termination day. That day is one year after the day on which the claim for compensation by way of weekly payments is made … subject only that if a later date is fixed by subsection (3) or subsection (4), that requires a fixing of a date ... under (4) by the director extending the termination date.
…
22 By s 93M(4) the Director has a discretion to extend the termination day but only if satisfied the employer has failed to comply with s 93O. Section 93O requires the employer to notify the worker in writing in accordance with the regulations of the termination day if no later day were fixed under s 93M(4) and to do so within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under s 93M(4).
…
27 It seems clear that in a situation governed by s 57B the worker will become aware that liability for the claim for weekly payments has been accepted by either the receipt of written or oral advice to that affect or the receipt of the first of weekly payments of compensation. Notwithstanding the Kleenheat's submission at par 36 that Mr Reale was never 'formally' notified, whatever that term precisely means, there is; (a) no evidence that Ms Reale was not formally notified that liability was accepted, and (b) no requirement in the legislation to give 'formal' notification. I assume the reference to 'formal' is intended to refer to notification by way of some type of a form if not a form prescribed under regulations. There is nothing in the Act to preclude 'informal' notification.
….
29 Until the worker knows what is the position regarding his or her claim to weekly payments he or she faces uncertainty in deciding what to do about any potential claim for damages at common law. The Act allows up to $217,970 in weekly payments and in the case of permanent total incapacity up to a further 75% thereof.
…
32 It also seems clear that Parliament, having taken away some of a workers previously existing common law rights was concerned to offer some protection to what was left. To this end Parliament required the employer give the worker notice of the termination day and in the event the employer failed to do so to give the Director a discretion to extend that date. In my view this explains why Parliament enacted s 93O and s 93M(4)(b).
…
41 Having regard to that evidence I find on the balance of probabilities Ms Reale made a claim for compensation by way of weekly payments on 2 March 2012 when she lodged the 'claim for compensation form'. What persuades me to this view is that at the same time she signed an authority to use sick/annual leave pending a decision being made on the workers' compensation claim and acknowledged her leave entitlements would be reversed if acceptance of the claim was ultimately made by the insurer and that those leave entitlements may not be reversed if liability for the claim was refused. There was no need to do this if Ms Reale was not seeking weekly payments of compensation for incapacity, whether it be total or partial.
42 I find that on 28 June 2012 Wesfarmers as the duly authorised agent of Kleenheat gave notice to Kleenheat that liability was accepted in respect of weekly payments of compensation. I am unable to find exactly when Ms Reale became aware that liability to make weekly payments of compensation was accepted as there is no evidence directly on this point from either Kleenheat or Ms Reale. However it is clear that whenever it was that Ms Reale became aware that liability for weekly payments was accepted it was not before 28 June 2012. I am satisfied that Ms Reale became aware that liability for weekly payments was accepted as it seems inevitable that, following Wesfarmers' advice to Kleenheat, Kleenheat made the first of the weekly payments and that the fact of this would have become apparent to Ms Reale when those payments appeared in her pay packet or bank account. I am satisfied on the balance of probabilities that she became aware of this on about 28 June 2012 or subsequently.
…
Section 93M (3)(b)
48 This section sets the termination date as 9 months after the worker is first notified that liability is accepted in respect of the weekly payments claimed unless a later day is fixed under s 93M (4). This begs the question, what is meant by the word 'notified'?
49 The Macquarie Dictionary Online defines 'notified' as:
1. to give notice to, or inform, of something.
2. to make known; give information of: the sale was notified in the newspapers.
[Middle English notifie(n), from Old French notifier, from Latin nōtificāre make known]
50 The Oxford English Dictionary Online, relevantly defines it as:
2. Of which notice has been given to the appropriate (esp. medical or statistical) authorities.
51 To give 'notice' essentially means to convey information.
52 For a worker to be notified that lability has been accepted information of the acceptance must have been made known to the worker in some form. The form could be by way of the spoken or written word or by some manner of action.
53 I have found it was made known to Ms Reale in one way or another that liability for weekly payments was accepted on or subsequent to 28 June 2012. This being the case it follows the termination date if calculated under this subsection was either 28 March 2013 or later.
…
58 Having regard to the comments of Corboy J in Bush Goldman v Damian Stewart as Director of WorkCover (WA) the termination day as set by s 93M(1) was displaced by the date set by s 93M(3)(b). Accordingly, the termination date was, 28 March 2013 or subsequently. The notice stated the termination day was 3 March 2013. So, notice of the termination day was not given.
59 The answer to question (b) is no. Notice was given on 17 August 2012. It should have been given within the period of 6 months and 6 months and 14 days before 28 March 2013. Irrespective of when the termination day exactly was, and mindful that it was not before 28 March 2013 the notice should have been given on or after 13 September 2012. Whilst I cannot say when exactly it should have been given I can say when it should not have been given. It should not have been given on 17 August 2012.
…
67. So s 93M(3) and s 93M(4) deal with different issues and operate disjunctively with s 93M(1). Further, there is no reason, given the different concerns s 93M(3) and s 93M(4) address, why they cannot and should not operate simultaneously with each other whilst remaining at the same time alternatives to each other.
…
76 In my view, those findings establish that Ms Reale had validly elected to pursue her claim for damages and therefore the jurisdictional prerequisites for this court to award damages are established.
Wesfarmers' contentions
45 By its amended defence filed 9 March 2015, Wesfarmers denies Ms Reale is entitled to the relief claimed on various grounds including that she is not entitled to damages because she failed to elect in the prescribed manner to retain the right to seek damages as required by s 93K(4) of the Act which, under s 93L(4), must be done before the termination day.
46 Wesfarmers contends that the extension of the termination day by the Director to 28 March 2014 was ultra vires on the basis that:
(a) Wesfarmers s 93O notice dated 17 August 2012 to Ms Reale was sent within the time period set by s 93O(2) and therefore the Director had no grounds upon which to extend the termination day under s 93M(4)(b); and
(b) Section 93M(3) was not triggered as Ms Reale was not 'first notified' that liability for the claim for weekly payments was accepted over three months after the date that she made the claim, and therefore the Director erred in calculating the plaintiff's termination day as 28 March 2013 pursuant to s 93M(3)(b); and
(c) The Director failed to take into account s 17 of the Interpretation Act 1984 when construing s 93M(1) and erred in extending the plaintiff's termination date cumulatively, pursuant to both s 93M(3) and s 93M(4)(b).
47 The issues raised by Wesfarmers and more particularly those set out in the agreed statement of issues for the trial of preliminary issue are dealt with below.
Ms Reale's contentions
48 Ms Reale contends that her election to retain the right to seek damages was made before the termination day as extended by the Director's delegate to 28 March 2014, which date was first extended by operation of s 93M(3)(b) of the Act to 28 March 2013.
49 Ms Reale maintains that, because Wesfarmers did not admit liability for weekly payments until its notice dated 28 June 2012, by operation of s 93M(3)(b) the termination day was extended under the Act to the earliest possible date of 'first notification', being 28 March 2013. There is no evidence of Wesfarmers at any time formally notifying Ms Reale in writing (or otherwise) that liability for her claim was accepted.
50 It is noted that Ms Reale's application dated 14 February 2014 pursuant to s 93M(4) to extend the termination day, sought an extension to 31 July 2014, on the basis that she was undergoing further medical evaluation and had not achieved maximum medical improvement. The extent to which Ms Reale relied on s 93M(4)(d) is irrelevant for present purposes.
51 If Ms Reale's termination date was in fact extended to 28 March 2013 by operation of s 93M(3)(b), then the Delegate's decision of 19 February 2014 to extend the date to 28 March 2014 is arguably within the exercise of her power.
52 The evidentiary material relied on, and the submissions made on behalf of Ms Reale, tend to suggest that she does not accept she made an application for compensation by way of weekly payments on 2 March 2012.
53 In oral submissions, this was explained as a fall-back position on the basis, that on one view she did not make the decision until 'after she was medically certified as totally unfit for work on about 13 June 2012, and after which time her payments were in fact recorded as workers compensation payments by Wesfarmers'. It was posited that the signed workers compensation form dated 2 March 2012 and the first medical certificate dated 24 February 2012, which she gave to Wesfarmers on or about 2 March 2012, was not intended to be a claim for weekly payments under the Act. With respect, it is difficult to find otherwise or to discern an alternative intention, except to note that both parties, by their actions, hoped at the outset that Ms Reale's symptoms would resolve quickly without the need to invoke the requirements of the Act.
54 In submissions, it was contended that the form entitled 'Workers' Compensation Claim Form' was in fact merely intended to be 'a notice of occurrence of the injury' in accordance with s 178(1)(a) of the Act. It seems the form prescribed to make a 'claim for compensation' as required by s 178(1)(b) of the Act is, as a matter of common practice, also used as the notice of occurrence of the injury, as required by s 178(1)(a).
55 In any event, in this case Wesfarmers does not take issue that arguably there was no separate notice of occurrence to satisfy the statutory obligation under s 178(1)(a) of the Act. Instead, Wesfarmers relies upon the form 2B notice dated 2 March 2012 and the provision of the first medical certificate as the datum for commencement of the period from when the claim was made.
56 Counsel for Ms Reale was, when pressed, unable to identify any other form 2B or document which could be regarded as the 'claim for compensation' as required under s 178(1)(b) of the Act. The best that could be conjured up was that the form 2B dated 2 March 2012 transformed itself into a claim when Ms Reale was certified totally unfit for work on 13 June 2012. Such a construction is, with respect, untenable and fly's in the face of the plain words of the notice itself and the extensive notice provisions under the Act.
Did Ms Reale make a claim for compensation under the Act on 2 March 2012?
57 Wesfarmers accepts Ms Reale suffered an injury at her workplace on 16 February 2012. She reported the incident to her supervisor at the time.
58 Both Wesfarmers and Ms Reale would have immediately appreciated that rights and obligations would arise under the Act as a result of the occurrence, given the employment relationship which existed between them.
59 Although Ms Reale hoped initially that her symptoms would be short-lived and that she would recover quickly, steps were taken to obtain medical treatment and she signed a form 2B workers compensation claim dated 2 March 2012. It is accepted that this form and the first workers compensation medical certificate were provided to Wesfarmers on or about 2 March 2012.
60 On the same date, 2 March 2012, Ms Reale signed an authority for Wesfarmers to use any sick or annual leave due to her whilst she was 'waiting for a decision to be made on the workers compensation claim' she had submitted. The authority indicates Ms Reale was prepared to accept sick or annual leave in the interim 'until the insurer accepts my claim', at which time her leave entitlement would be reversed. She also understood that there was a risk her leave entitlements might not be reversed 'if the insurers' did not accept liability for her claim.
61 It can be inferred from this documentation that Ms Reale must have appreciated she had made a claim for payment of workers compensation as a result of her work injury. Having made a claim and having agreed to allow her employer to utilise her sick and annual leave entitlements pending a formal acceptance of liability for the claim, it can be inferred that she expected to receive a notification from Wesfarmers as to whether her claim was accepted.
62 Because of the importance of calculating the termination day, a threshold question arises as to whether Ms Reale in fact made a claim on or about 2 March 2012 for weekly payments of compensation for the purposes of s 178 and s 179 of the Act.
63 After the first week, Ms Reale returned to work and appears to have worked overtime in addition to her core hours for the next accounting period of time. Wesfarmers' financial records do not record the payment of any workers compensation to Ms Reale pursuant to her claim for the year ended 30 June 2012. The first record of Wesfarmers indicating the fact of payment of workers compensation appears on Ms Reale's first payment slip in July 2012.
64 Ms Reale contends this is no coincidence because, for whatever reason which has not been fully explained by Wesfarmers, on 28 June 2012, Wesfarmers Group WorkCover issued a form of 3A insurer's notice that liability is accepted 'in respect of weekly payments and reasonable medical expenses'. The notice purported to be given under s 57A(3)(a) of the Act, which would appear to be an error because s 57A is concerned with the claims procedure applicable to an insured employer (Wesfarmers was self-insured under s 57B).
65 It is noted the notice dated 28 June 2012 was issued to Wesfarmers Kleenheat Gas, Ms Reale's employer. This is in contra-distinction to an earlier notice also issued by Wesfarmers Group WorkCover dated 15 March 2012 which was addressed to Ms Reale and Wesfarmers Kleenheat Gas. This notice was issued in the same form and purported to inform both Ms Reale and her employer that liability under her claim was accepted for reasonable medical expenses.
66 In oral submissions, an issue arose as to what Ms Reale's claim on 2 March 2012 was in fact for. Was it for medical expenses or payment of workers' compensation, and if so on what basis, total or partial incapacity? As it will be seen, the termination day only arises 'if a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury': s 93M(1).
67 I do not accept Ms Reale's submission that the provision of the workers' compensation claim form dated 2 March 2012, together with the first medical certificate, did not constitute a claim for compensation by way of weekly payments.
68 In any event, Ms Reale is unable to identify a subsequent date whereby she in fact made a 'claim for compensation' or a 'claim for weekly payments' in accordance with the requirements of the Act. The difficulty is that the prescribed form 2B does not expressly require the worker to identify what is being sought. This can be explained by the balancing of the need to ensure the employer is informed as soon as possible of the incident giving rise to the alleged claim and the need to protect the worker's position so far as receipt of entitlements is concerned. Plainly, only the passage of time will indicate the full nature of the claim - that is whether it is for weekly payments based on partial or whole incapacity, or just medical expenses.
69 It is now necessary to turn to the relevant provisions of the Act. Section 57B of the Act relevantly provides: –
57B. Claims procedure where employer is self-insured or uninsured
(1) This section applies where -
(a) a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 178(1)(b); and
(b) the worker suffering the injury has served on the employer a certificate signed by a medical practitioner -
(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or
….
and the employer (whether in contravention of section 160, in accordance with an exemption under section 164, as a result of the insurer declining to indemnify the employer, or otherwise) is not indemnified by a policy of insurance against his liability to pay the compensation claimed.
(2) In the circumstances mentioned in subsection (1), an employer must, before the expiration of 17 days after those circumstances arose -
(a) if liability to make the weekly payments claimed is accepted, subject to subsection (6), make the first of those weekly payments; or
(b) subject to section 75, give the worker notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c) give the Director and the worker notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
…
(4) Where an employer fails to comply with subsection (2) upon a worker claiming compensation by way of weekly payments under this Act, the worker is, by force of this subsection, entitled to the weekly payments claimed and the employer shall, subject to subsection (6), forthwith make the first of those weekly payments, but the employer may apply for a determination under subsection (5).
….
(6) An employer is not required under subsection (2) or (4) to make any weekly payment unless -
(a) the worker has complied with the requirements of sections 178 and 179; or
…
(8) An employer who fails to make a weekly payment by the due date under subsection (2), (4) or (7) commits an offence.
Penalty for each weekly payment not made when due: a fine of $2 000. (emphasis added)
57A. Claims procedure where employer insured
(1) This section applies where -
(a) a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba) the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b) the worker suffering the injury serves on the employer a certificate signed by a medical practitioner -
(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii) to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
Penalty: a fine of $1 000.
(2) Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 5 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 5 working days for which weekly payments are claimed by the worker.
(3) Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer -
(a) give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
(b) subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c) give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000. (emphasis added)
72 Ms Reale continued to work in her pre-accident job, and was paid her salary and more because she worked additional hours. She was restricted in her lifting duties but was otherwise initially fit for work. She was paid her normal salary and her pay slips did not record any payments of workers' compensation. Wesfarmers itself did not record any payments of workers' compensation in the year ended 30 June 2012.
73 Wesfarmers did not inform or advise Ms Reale that liability for her claim had been accepted. It certainly did not do so within 17 days of the claim having been made because it itself did not make a decision to accept liability until about 28 June 2012, which decision was recorded in the form 3A notice of that date. This is the first and only record of the decision by Wesfarmers to accept liability for the payment of weekly payments. Wesfarmers cannot point to any actual notification to its employee that the claim was accepted.
74 Wesfarmers says Ms Reale should have known or could infer that liability was accepted for her claim because payments of weekly compensation were made to her. However, it has no documentary proof that actual payments of weekly compensation were made to Ms Reale before July 2012.
75 In addition, Wesfarmers says it should have been inferred by Ms Reale as a result of the statutory obligation under s 57B(2)(a) on Wesfarmers to make such payments if liability is accepted within 17 days of the claim or to take the alternative steps - which it did not. Also see s 57B(4) and s 57B(8). It is difficult to understand why a worker should have to rely on an inferential process by reference to obligations imposed on the employer under the Act, especially when Wesfarmers itself did not conduct its own record keeping on the basis that weekly payments were being made.
76 In addition, Wesfarmers was obliged under s 57C(3) to notify WorkCover within 21 days of the commencement of weekly payments to Ms Reale. It did not do so. One might infer this was because no payments of weekly compensation were in fact made at the time.
77 Section 93L is concerned with a workers election to retain the right to seek damages. It is not confined to self-insured employers or where the employer is insured. It applies to both. As Wesfarmers contends that Ms Reale cannot maintain her action because she did not make her election before the termination day, it is necessary to set out the relevant provisions of the Act that concern the 'termination day'. Section 93L relevantly provides as follows:-
93L. Election under s. 93K to retain right to seek damages
(1) In this section -
termination day has the meaning given in section 93M.
(2) A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a) the worker and the employer agree -
(i) that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii) as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
- or
(b) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
….
(4) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
…
(6) An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries. (emphasis added)
93M. Termination day defined
(1) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
(2) In subsection (1) -
claim for compensation by way of weekly payments means a claim for compensation by way of weekly payments for total or partial incapacity that has been made on an employer in accordance with section 178(1)(b).
(3) If, after the expiry of the period of 3 months after the day on which the claim is made -
(a) a dispute resolution authority, acting under section 58(1) or (2), determines the question of liability to make the weekly payments claimed; or
(b) the worker is first notified that liability is accepted in respect of the weekly payments claimed, the termination day is the last day of the period of 9 months after the day of the act described in paragraph (a) or (b) that was most recently done unless a later day is fixed under subsection (4).
(4) The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(a) before the termination day, an approved medical specialist, in writing -
(i) certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and
(ii) recommends a day until which the termination day be extended;
or
(b) the Director is satisfied that the employer has failed to comply with section 93O; or
(c) the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or
(d) the Director is satisfied that -
(i) the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker's degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or
(ii) the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker's degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.
normal evaluation has the meaning given to that term in section 146C(3);
special evaluation has the meaning given to that term in section 146C(4).
(6) An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
(7) An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.
(8) An extension may be given even though the termination day has passed. (emphasis added)
80 As already mentioned, there appears to be a distinction in s 178(1) between the requirement on a worker (a) to serve 'a notice of the occurrence of the injury' on the employer; and (b) to make a claim for compensation in the prescribed form. Section 178(2) sets out the requirements of the 'notice of the occurrence of the injury'. There is no prescribed form of the notice. On the other hand, reg 6AA(1) of the Workers' Compensation and Injury Management Regulations 1982 (the Regulations) prescribes Form 2B as the form for the purpose of making a claim by a worker under s 178(1)(b) of the Act. This was the form used by Ms Reale on 2 March 2012 and which was partially completed by her and Wesfarmers.
81 There is no other document relied upon by Ms Reale as 'a notice of the occurrence of the injury' for the purpose of s 178(1)(a) of the Act. I note the information required under s 178(2) is also contained in the form 2B – the claim for compensation dated 2 March 2012. It is obviously important that an employer is informed as soon as possible of the occurrence of an injury to a worker for safety reasons and evidence gathering, but, as mentioned, it seems in practice a separate notice of the occurrence of an injury is not given.
82 For ease of reference s 178 relevantly provides:-
178. Notice of injury, and claim for compensation, requirements for
(1) Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless -
(a) a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b) the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,
but —
….
(2) Notice in respect of an injury under this Act is to state -
(a) the name and address of the person injured; and
(b) in ordinary language the cause of the injury; and
(c) the date and place at which the injury occurred,
and is to include such other information, if any, as may be prescribed by the regulations. (emphasis added)
Can the termination day be fixed under s 93M(3)(b) and then further extended under s 93M(4)?
84 Before considering this question a preliminary issue arises. Wesfarmers contends that on a proper construction of s 93M the termination day can only be changed under subsection (3) or (4), but not both. This interpretation is based on a strict literal interpretation of the phrase in sub-section (1) – '…unless a later day is fixed by subsection (3) or under subsection (4)'. Wesfarmers also, consistent with its disjunctive interpretation of 'or' in this context submits that the power of the Director in subsection (4) can be exercised only once and on one ground only, even though there are separate heads of power which might enliven the exercise of discretion to extend the termination day.
85 Counsel for Wesfarmers referred to s 17 of the Interpretation Act 1984 which provides:-
17. Disjunctive construction of 'or'
In relation to a written law passed or made after the commencement of this Act, but subject to section 3(3), or, other, and otherwise shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added.
87 The relevant principles of statutory interpretation were recently summarised by Le Miere J in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 at [13], [18] - [19]:
13In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 455 [sic] the High Court was called upon to interpret the term 'the Australian content of programmes' in s 122 of the Broadcasting Services Act 1992 (Cth), which provided for the Australian Broadcasting Authority to make programme standards relevant to broadcasting in Australia. In approaching construction of that broad term, the plurality (McHugh, Gummow, Kirby & Hayne JJ) said:
The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning (footnote omitted) [78].
- In recent years the High Court has emphasised the primacy of the text in determining statutory meaning. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 27; (2009) 239 CLR 27 the plurality (Hayne, Hayden, Crennon and Keifel JJ) said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy (footnotes omitted) [47].
18 In Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 French CJ and Hayne J said at [24] that the context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky, 'the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute'. Their Honours also said:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure [25].
19 Sometimes it is difficult, if not impossible, to define the purpose of a statutory provision. It sometimes happens that the purpose cannot be defined more precisely than by reference to its immediate function. The purpose thus ascertained does not aid in the construction of the statutory provision as it is a purpose derived from the text itself: Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 [20] (French CJ).
88 It should also be noted as Crennan and Kiefel JJ said in Newcrest Mining v Thornton[2012] HCA 60; (2012) 248 CLR 555 at [93]; 'In construing a statute, the purpose of which is relatively clear, it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose'. The context of the provision being interpreted, by reference to the statute as a whole, is a paramount consideration.
89 In my view Glenn v Compass Group (Australia) Pty Ltd [2014] WADC 86, although relied upon by Wesfarmers, has no relevance for present purposes being concerned with different questions of construction of different provisions of the Act.
90 I can see no logical reason why the termination date initially set by s 93M(1) cannot be changed by operation of the Act itself under subsection (3) and then, separately and independently by the exercise of the discretion conferred on the Director in the limited circumstances set out in subsection (4). Nothing, having regard to the beneficial nature of the legislation or the interests of justice, dictates otherwise. Such a construction does not create any unfairness or injustice on the employer or its insurer. It is consistent with the need for there to be some movement of the termination day in the limited circumstances contained in the Act. The regime of the Act in this regard is consistent with the objects and purposes of the Act as set out in s 3.
91 I would observe that to contend a worker cannot make an application under s 93M(4) because s 93M (3) has already operated, as a result of the failure of the employer (or insurer) to notify the worker whether liability is accepted within three months of receipt of the claim, would work an injustice on the worker through no fault of their own. The worker has no control over when the employer or its insurer will make a decision whether or not to accept liability for the workers compensation claim.
92 It also an important consideration to note that the effect of changing the termination date under s 93M(3) is by operation of the Act, not an election on the part of the worker. I am not persuaded that the third paragraph of [104] of the Explanatory memorandum of the Reform Bill 2004 which resulted in the Act assists in determining the proper construction. Section 93M(3) is self-executing. This is in contra-distinction to s 93M(4) which involves the exercise of a discretion by the Director in limited circumstances on an application by the worker. Presumably the legislature determined that the interests of justice in the stated circumstances warranted the grant of a power to the Director to extend the termination date if it is deemed appropriate.
93 Similarly I cannot see why, in an appropriate case, a worker could not call in aid the power of the Director under s 93M(4) on more than one occasion, if and when necessary. I am sure the limited circumstances available to enliven the power of the Director was the subject of extensive negotiation at the time, given the limitations imposed on an injured worked to maintain a claim for damages at common law.
94 In my view, the proper construction of s 93M does not limit the extension of the termination date under subsection (3) or (4) in the sense that if the termination date is fixed under one subsection it cannot then be fixed again under the other at a subsequent time.
95 In a temporal sense an application under s 93M(4) can be expected to only be made after s 93M(3) has operated, unless the employer/insurer failed to give any notice under s 93O because it had not made a decision whether to accept liability for the workers claim.
96 There is no obvious or discernible prejudice to the employer which would require the narrow and restrictive interpretation contended for by Wesfarmers. The employer will have notice of the claim and the time for its determination will not be indeterminate, while at the same time recognizing the need to balance the interests of the injured worker.
Did the operation of s 93M(3)(b) fix the termination day as 28 March 2013?
97 The next issue to determine is Wesfarmers' contention that the termination date was not changed by the operation of s 93M(3)(b). Wesfarmers contends s 93M(3) only applies to cases where the employer is insured and not to self-insured employers.
98 This submission is premised on the basis that s 57B(2)(a), by its terms, does not require the giving of any notice to the worker that liability is accepted in respect of the weekly payments claimed. It is submitted this is in contra-distinction to s 57A(3a) which imposes an obligation on the insurer of an insured employer to give the worker a notice within 14 days that liability for the claim is accepted.
99 Wesfarmers contends, because it is self-insured and by reason of the requirement to make payments within 17 days of the claim, if liability is accepted then no actual notice is required. The evidential difficulty in this case is that it is not known when weekly payments were made to Ms Reale as opposed to payments of her salary in the ordinary course and her knowledge of this at the time. The distinction is important because of the impact on other workers' rights under the Act.
100 In any event, having made a claim and provided it to the employer the worker, whether or not the employer is self-insured would still need to know with certainty and actual knowledge that liability for the claim is accepted. On one view the need for notification in the case of a self-insured employer is greater because of the close relationship that may exist between the parties. Equally it would be important for a worker to know if the employer is insured, that the third party insurer responsible for meeting the obligations as a result of the claim having been made, has accepted liability. Plainly s 93M(3) does not by its express terms limit its operation to insured employers only. It would have been a simple matter for the legislature to say so if this had been its intention.
101 Wesfarmers submission that s 93M(3) does not apply to self-insured employers, with respect, can't be right because s 93M(3)(a) refers to s 58(2) which is solely concerned with s 57B self-insured employers. Presumably, given the use of 'or' in s 93M(3) between the subsections, if subsection (3)(b) was only intended to apply to insured employers via s 58(1) the legislature would have made it plain.
102 In this case, as mentioned, there is no evidence of Ms Reale being formally notified, either orally or in writing, that Wesfarmers accepted liability for her claim. That decision, in any event, was only made on or about 28 June 2012 as evidenced by the form 3A certificate by Wesfarmers Group WorkCover.
103 In my view, irrespective of the statutory obligation imposed on a self-insured employer to make payments if liability is accepted within 17 days, this does not preclude the existence of a separate obligation under s 93M(3)(b) to notify the worker that liability is accepted in respect of the weekly payments claimed. If such notification is after the expiry of three months from the day the claim was made then, by operation of the section, the termination date initially set by s 93M(1) is extended to nine months after notification, 'unless a later is fixed under subsection (4)'. This proviso plainly indicates that the termination dated 'fixed' under s 93M(3) might also be 'extended' under s 93M(4).
104 It is the case that s 93M(3)(b) does not require a decision to be made by the director, as in the case of s 93M(4). The termination date is fixed by operation of the provision in s 93M(3)(b) when the worker is 'first notified' that liability is accepted. The cause of the termination date to be fixed in this way will always be a result of the employer's delay in a decision whether to accept liability for the claim.
105 The requirements of the Act and the prescribed form (form2B) under s 178(1)(b) for making a claim for compensation under the Act may need to be reviewed to provide better clarity and understanding by the parties of the effect and purpose of the notice. The reality appears to be, speaking generally, that maybe reluctance on the part of workers to make a claim for workers compensation unless there is no other choice. By making a claim, the provisions of the Act are invoked. The worker has the work history stigma going forward of having made a claim. This might affect future employment prospects. This might explain the offer made by Wesfarmers to Ms Reale to pay her medical expenses, travel expenses and time off work. In my view, such an offer is not the same as 'accepting liability' for Ms Reale's claim for compensation under the Act. It is not equivalent to the entitlements under the Act that she may be entitled to and which might flow from having made a claim.
106 As Mr Myers said in oral submissions, the prescribed form 2B does not indicate, at the time it is given to the employer, whether the claim for compensation is for partial or total weekly payments, or just medical expenses. This is because the answer will not usually be known when the claim is first made. This is another reason why the claim form should not be used to give notice of the occurrence of an injury.
107 I am not persuaded, as a matter of statutory construction, that s 93M(3)(b) only applies to insured employers and not self-insured employers. The fact that s57B(2) does not impose an express obligation on a self-insured employer to notify the injured worker that liability is accepted for the claim, does not on its own mean that a subsequent provision in the Act cannot give rise to the need for such notice to be given, preferably in writing (as was purported to be done by Wesfarmers in this case by the preparation of the form 3A notices).
108 As previously held, the earliest date on which Ms Reale could have been first notified of acceptance of liability by Wesfarmers was 28 June 2012, when Wesfarmers itself formally decided to accept liability as evidenced by the form3A dated 28 June 2012. The is no evidence of Wesfarmers actually notifying Ms Reale, but if it had chosen to do so, obviously, it could only have done so after it had made its own decision to accept liability.
109 On this basis, I find the termination day for Ms Reale was extended from 3 March 2013 to 28 March 2013 under s 93M(3)(b), being nine months after 28 June 2012 when, Wesfarmers itself first decided to accept liability for Ms Reale's claim for compensation.
Section 93M(4)(b) application to extend the termination day
110 It is accepted that if the termination day was extended to 28 March 2013 under s 93M(3)(b) then the notice by Wesfarmers dated 17 August 2012 pursuant to s 93O stating that the termination day was 3 March 2013 was defective.
111 Accordingly, the decision of the Directors delegate under s 93M(4)(b) to extend the termination day to 28 March 2014 on the application of Ms Reale was ostensibly within power. No other grounds are relied upon to contend the decision was beyond power or ultra vires. This finding assumes, as previously held, that s 93M(3) and s 93M(4) operate separately and independently of each other.
Conclusion
112 In summary:
1. On 2 March 2012 Ms Reale made a claim on her employer, Wesfarmers, for compensation by way of weekly payments with respect to an injury as a result of an occurrence of an injury in her workplace on 16 February 2012.
2. By operation of s 93M(1) of the Act, the termination day for Ms Reale to elect to retain the right to seek damages with respect to her injury pursuant to s 93L was initially 3 March 2013.
3. On or about 28 June 2012, Wesfarmers decided to accept liability in respect of Ms Reale's compensation claim for weekly payments and reasonable medical expenses. Wesfarmers' acceptance of liability is recorded in its insurer's notice that liability is accepted (form 3A) dated 28 June 2012 provided by Wesfarmers Group WorkCover to Wesfarmers Kleenheat Gas Pty Ltd.
4. On an earlier date, Wesfarmers accepted liability in respect of reasonable medical expenses. This decision is evidenced by an insurer's notice that liability is accepted (form 3A) dated 15 March 2012 to Ms Reale and Wesfarmers Kleenheat Gas by Wesfarmers Group WorkCover.
5. By reason of the operation of s 93M(3)(b) of the Act, the termination day for Ms Reale's election to retain the right to seek damages was fixed as 28 March 2013. The initial termination date under s 93M(1) of the Act was extended by operation of s 93M(3)(b) on the basis that Ms Reale was 'first notified' that liability was accepted by Wesfarmers in respect of the weekly payments claim on the earliest date of 28 June 2012 (there being no evidence of any actual notification of Wesfarmers' decision to accept liability).
6. By notice to Ms Reale about the termination day for her election dated 17 August 2012, Wesfarmers purported to comply with its statutory obligation under s 93O of the Act to notify her in writing of certain matters including, in particular under s 93O(1)(a), the day that would be the termination day if no later day were to be fixed under s 93M(4). The notice fatally informed Ms Reale that the termination day was 3 March 2013. This was incorrect by reason of the termination day having been fixed as 28 March 2013 under s 93M(3)(b). Accordingly, Wesfarmers' notice did not comply with its statutory obligation under s 93O and is null and void.
7. On 14 February 2014, Ms Reale filed an application to extend the termination day under s 93M(4)(b) of the Act on the grounds that Wesfarmers failed to comply with s 93O. Such an extension may be given, even though the termination day has passed: s 93M(8). The application sought an extension of the termination day to 31 July 2014. This was beyond power because an extension under s 93M(4)(b) cannot be granted more than one year after the day that would have been the termination date had there been no extension under the subsection: s 93M(6).
8. On 19 February 2014, the Director's delegate lawfully granted Ms Reale's application to extend the application day on the basis that Wesfarmers s 93O notice was defective because it did not state the correct termination date. As a result, the Director's discretion was enlivened under s 93M(4)(b) to extend the termination day to 28 March 2014. Accordingly, the termination day for election by Ms Reale to retain the right to seek damages was fixed as 28 March 2014. This date is the result of the separate and independent operation of s 93M(3) and s 93M(4) of the Act.
9. On 5 March 2014, Ms Reale filed an election to retain the right to seek damages under s 93K(4) of the Act. The election was formally registered by the Director's delegate on 12 March 2014.
10. Accordingly Ms Reale has lawfully exercised her right of election under s 93L of the Act to seek damages, which election was made before the termination day.
113 For these reasons, in my opinion, this court has jurisdiction under the Act to hear and determine Ms Reale's claim for damages in this action arising out of her work related incident on 16 February 2012.
0
12
3