Regis Aged Care Pty Ltd v Hunter
[2017] WADC 12
•1 FEBRUARY 2017
REGIS AGED CARE PTY LTD -v- HUNTER [2017] WADC 12
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 12 | |
| Case No: | APP:79/2016 | 13 JANUARY 2017 | |
| Coram: | PARRY DCJ | 1/02/17 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | REGIS AGED CARE PTY LTD MAUREEN HUNTER |
Catchwords: | Workers' compensation Application for leave to appeal from decision of arbitrator Application by employer for discontinuance, suspension or reduction of weekly payments of compensation to worker under s 60 of Workers' Compensation and Injury Management Act 1981 (WA) on basis of genuine dispute as to liability to pay compensation in consequence of worker's failure to mitigate loss by refusing to participate in alternative employment training Application refused by arbitrator because employer had not persuaded arbitrator that issue of notice under s 61 of Workers' Compensation and Injury Management Act 1981 or commencement of application under s 62 of Workers' Compensation and Injury Management Act 1981 not available to it Whether question of law involved Whether arbitrator erred in law in failing to determine s 60 application Whether arbitrator erred in law in focusing on availability of s 61 or s 62 of Workers' Compensation and Injury Management Act 1981 to employer Threshold issue Whether s 60 application competent |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 60, s 60(2), s 61, s 61(3), s 62, s 247, s 247(1), s 247(2)(b), s 247(5) |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148 Taylor v Star Broken Meats (Unreported, WASCA, No 119 of 1991, 26 August 1992) The State of Western Australia (Department of Education) v Leek [2014] WADC 10 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MAUREEN HUNTER
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR A DAVIES
Citation : A33466
Catchwords:
Workers' compensation - Application for leave to appeal from decision of arbitrator - Application by employer for discontinuance, suspension or reduction of weekly payments of compensation to worker under s 60 of Workers' Compensation and Injury Management Act 1981 (WA) on basis of genuine dispute as to liability to pay compensation in consequence of worker's failure to mitigate loss by refusing to participate in alternative employment training - Application refused by arbitrator because employer had not persuaded arbitrator that issue of notice under s 61 of Workers' Compensation and Injury Management Act 1981 or commencement of application under s 62 of Workers' Compensation and Injury Management Act 1981 not available to it - Whether question of law involved - Whether arbitrator erred in law in failing to determine s 60 application - Whether arbitrator erred in law in focusing on availability of s 61 or s 62 of Workers' Compensation and Injury Management Act 1981 to employer - Threshold issue - Whether s 60 application competent
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 60, s 60(2), s 61, s 61(3), s 62, s 247, s 247(1), s 247(2)(b), s 247(5)
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant : Mr A Basile
Respondent : Mr M J Lourey
Solicitors:
Appellant : SRB Legal
Respondent : Chapmans
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148
Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992)
The State of Western Australia (Department of Education) v Leek [2014] WADC 10
- PARRY DCJ:
Introduction
1 Regis Aged Care Pty Ltd (Regis) seeks leave to appeal, pursuant to s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act), against the decision of the Workers' Compensation Arbitration Service made on 30 September 2016 in which Arbitrator Davies dismissed Regis' application, made pursuant to s 60 of the WCIM Act, for the discontinuance, suspension or reduction of weekly payments of compensation by Regis to Ms Maureen Hunter.
Background
2 Ms Hunter has been an enrolled nurse since 1970.
3 On 28 June 2013, Ms Hunter sustained a right hip injury in the course of employment with Regis when she was manually handling a patient.
4 On 8 July 2013, Ms Hunter claimed statutory compensation. On 21 October 2013, Regis admitted liability for workers' compensation and commenced paying weekly payments of compensation. Regis currently makes weekly payments of compensation to Ms Hunter at the rate of $1,151 gross per week.
5 Ms Hunter was also given rehabilitation support and participated in a return-to-work program. By early 2016, Ms Hunter was able to work as an enrolled nurse with Regis for 24 hours a week, although she had to avoid repetitive bending, prolonged standing, sitting and walking, and lifting weights over 5 kg. Regis terminated the return-to-work program on 22 January 2016.
6 Since at least 19 May 2016, Regis has contended that there is a genuine dispute as to liability to pay compensation to Ms Hunter, on the basis that Ms Hunter has failed to mitigate her loss by refusing to undertake phlebotomy training.
7 Phlebotomy involves taking blood from a patient for examination or transfusion. Regis offered Ms Hunter the opportunity to train as a phlebotomist. However, Ms Hunter ultimately declined to do so, because she wishes to remain a nurse, having spent her entire working life in nursing.
Section 60 application
8 On 10 June 2016, Regis made an application to the Workers' Compensation Arbitration Service, pursuant to s 60 of the WCIM Act, for an order discontinuing, suspending or reducing Ms Hunter's weekly payments of compensation. Section 60(2) of the WCIM Act states as follows:
If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended for such time as the arbitrator directs or be discontinued or be reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
9 Regis contended before the arbitrator that there is a genuine dispute as to liability to pay compensation on the basis that Ms Hunter has failed to mitigate her loss by refusing to participate in phlebotomy training.
10 In support of its application, Regis relied on medical evidence by Mr John Hill, an orthopaedic specialist, who in a report dated 9 March 2016 indicated that Ms Hunter was fit to work as a phlebotomist. Regis also relied on medical evidence of Dr Stewart Lloyd, an occupational physician, who said in a report dated 3 November 2015 that Ms Hunter could be fit to work as a phlebotomist, although she would need to undertake a work trial before a definitive opinion on her capacity could be given.
11 Regis also referred to advice from a consultant that Ms Hunter could obtain the necessary qualifications to become a phlebotomist by completing a Certificate III in Pathology/Phlebotomy, which is a three to four week course.
12 Ms Hunter opposed the application. She did so principally on two bases. First, she contended that the application is invalid, because the dispute is amenable to resolution under s 61 of the WCIM Act. Secondly, Ms Hunter contended that, in the circumstances of the case, she has not failed to mitigate her loss.
Arbitrator's decision
13 The arbitrator determined the application on the papers and refused the application.
14 The arbitrator accepted [21] that the doctrine of mitigation is applicable in relation to workers' compensation matters. Furthermore, the arbitrator recognised [23] that, as held by Staude DCJ in The State of Western Australia (Department of Education) v Leek [2014] WADC 10 [97] – [98], an employer may raise 'a genuine dispute as to liability to pay compensation' under s 60 of the WCIM Act on the basis that the worker's entitlement was put in issue by her failure to mitigate her loss.
15 However, the arbitrator distinguished the facts of Ms Hunter's case from the facts in Leek and dismissed Regis' application for the following reasons [24] – [26]:
… [I]n this matter there appears to be no evidence that the respondent worker has failed to attend an arranged appointment for a medical examination or refused to communicate or cooperate to the point of not providing information as to her current contact details such that the application [sic] employer could not gather together the evidence necessary to bring an application under sections 61 or 62. Certainly nothing of this nature is relied upon in the applicant employer's submissions. Instead the applicant employer's point is that it cannot serve a section 61 notice because it is not arguing that the respondent worker is fit to return to her pre-accident employment as an enrolled nurse or that she is no-longer incapacitated as a consequence of her compensable injury. Further it is not clear how not completing training as a phlebotomist prevents the applicant employer from gathering evidence as to the past or present condition of the worker for the purposes of section 62 of the Act.
The applicant employer has not persuaded me that sections 61 or 62 are not available to it. That an application pursuant to section 60 could theoretically achieve a more favourable outcome for an employer does not establish that another section of the Act is not available.
It is unnecessary to determine whether the respondent worker has failed to mitigate her loss in order to determine this application. If it had been, the mere fact that the respondent worker is unwilling to re-train as a phlebotomist does not establish that, in all the circumstances, to fail to do so was unreasonable, nor that the respondent worker did not engage properly with the rehabilitation process.
Legal framework
16 Leave to appeal is required under s 247(1) of the WCIM Act. Relevantly, under s 247(2)(b) of the WCIM Act, leave to appeal is not to be granted unless 'a question of law is involved'. To establish that there is 'question of law' involved, it is necessary to show, as Pullin JA (with whom Wheeler JA agreed) held in BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3], 'that an error of law or an error of mixed fact and law has occurred'.
17 As his Honour also held in Brady [15], applying Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 323, 'a decision does not "involve" an error of law "unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different"'.
18 Where leave to appeal is granted, s 247(5) of the WCIM Act provides that:
An appeal under this section is to be by way of review of the decision appealed against …
19 As Wheeler JA (with whom Pullin and Buss JJA agreed) held in Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [21], in an appeal under s 247 of the WCIM Act, there must be a proper basis for disturbing the decision under challenge. As her Honour also held [24], a 'review' is broader than an appeal in the strict sense, is not limited merely to the correction of errors of law, and requires the court to conduct a 'real review'.
20 Finally, as held in Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148 [67]:
… [I]n an application for leave to appeal and, where leave is granted, in a review of the decision appealed against under s 247 of the WCIM Act, the reasons for decision of the arbitrator must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unhappy phrasing.
Grounds of appeal
21 Regis seeks leave to appeal in relation to the following two grounds:
1. The Arbitrator erred in law in finding that there was not a genuine dispute as to liability pursuant to s 60 of the [WCIM Act].
2. The Arbitrator erred in law in dismissing [Regis'] application on the basis that it was open for [Regis] to:
• issue a Notice pursuant to s 61 of [the WCIM Act]; and
• issue an application pursuant to s 62 of [the WCIM Act].
22 Regis submits that the arbitrator erred in law in two related respects. First, Regis submits that the arbitrator failed to determine the issue that it brought in its s 60 application, namely, whether there is a genuine dispute as to liability to pay compensation on the basis that Mr Hunter has failed to mitigate her loss by refusing to participate in phlebotomy training, and therefore failed to determine Regis' application.
23 Secondly, Regis submits that the arbitrator erroneously focused on whether it was open for Regis to serve a notice under s 61 of the WCIM Act or file an application under s 62 of the WCIM Act, rather than dealing with the real issue, namely, whether there is a genuine dispute as to liability under s 60 of the WCIM Act.
24 As indicated earlier, an arbitrator's reasons must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unhappy phrasing. In my view, when the arbitrator's reasons are read in this way, it is clear that what the arbitrator did was to focus upon, and refuse Regis' s 60 application on the basis of, a threshold question as to whether the application could properly be brought under s 60 of the WCIM Act, when s 61 or s 62 of the WCIM Act were also potentially available enabling provisions in relation to the substance of the matter that Regis contends against Ms Hunter.
25 The arbitrator did not err in law in focusing upon the threshold question, at least in relation to the availability of s 61 of the WCIM Act. To the contrary, the approach adopted by the arbitrator reflects the law as determined in the decision of the Full Court of the Supreme Court of Western Australia in Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992).
26 In Star Broken Meats, the Full Court dismissed a worker's appeal from a decision of the former Workers' Compensation Board in which the Board, on the application of the employer, held that there was a genuine dispute concerning the amount of weekly payments to which the appellant worker was entitled. Owen J (with whom Pidgeon J agreed and with whom Rowland J was 'in general agreement', 2) gave the principal judgment of the court. His Honour analysed the statutory scheme comprising three provisions of the WCIM Act, namely s 60, s 61 and s 62, which enable weekly payments of compensation to be discontinued, suspended or changed in certain circumstances.
27 The first of the three enabling provisions, namely s 60 of the WCIM Act, states as follows:
(1) Where weekly payments are made to a worker pursuant to this Division, the employer may apply at any time for an order of an arbitrator that such payments be discontinued or reduced.
(2) If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended for such time as the arbitrator directs or be discontinued or be reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
28 The second enabling provision, namely s 61 of the WCIM Act, states, in part, as follows:
(1) Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
…
(3) A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
(4) Upon the hearing of an application referred to in subsection (3) an arbitrator shall -
(a) adjourn the application on such terms as the arbitrator thinks fit; or
(b) dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c) make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
…
29 The second enabling provision (s 61) confers three significant benefits for a worker over the first enabling provision (s 60) where an employer seeks to discontinue or reduce weekly payments of compensation to the worker.
30 First, s 61 gives the worker a period of at least 21 days in which to consider his or her position in relation to the employer's stated intention to discontinue or reduce weekly payments of compensation.
31 Secondly, if the worker disputes the right of the employer to reduce the weekly payments of compensation and applies for an order of an arbitrator that the weekly payment shall not be discontinued or reduced, then the commencement of the worker's application for an order operates as a statutory stay on the discontinuance or reduction of the weekly payments of compensation until the resolution of the application.
32 Thirdly, although in order to succeed under s 60, the employer must satisfy an arbitrator both 'that there is a genuine dispute as to liability' and 'of the grounds of the dispute', s 61 confers greater scope for argument on a worker than s 60. As Staude DCJ held in Leek [82.6], in the resolution of a s 60 application, '[a]n objective appraisal of the merits dispute is not required'. The limited scope of a s 60 proceeding and hence the limited scope a worker's arguments in such a proceeding is apparent from what his Honour said in Leek [89] – [90]:
It is clear that the learned registrar focused on the merits of the employer's grounds, rather than on whether there was a genuine dispute as to liability or quantum. Consequently, the learned registrar purported to determine, not whether the employer's contentions grounded a genuine dispute, but whether they were likely to be made out as facts which would disentitle the worker to compensation.
The threshold set by the learned registrar was too high and not in accordance with established authorities on the construction and application of s 60. These authorities, to which I have referred, make it clear that the arbitrator does not look behind the declared attitude of the employer provided it is sincere and serious and that the grounds of the dispute are not frivolous.
33 The third enabling provision, namely s 62 of the WCIM Act, states as follows:
(1) Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2) An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
34 In Star Broken Meats, Owen J held as follows 14:
The legislature had paid special regard to the entitlement of a worker to continue in receipt of payments once commenced. Hence the particularity with which s 61 has been drafted, with its requirement that the worker be given a 21 day period within which to consider his or her position before the adjustment of payments can take effect. This is a specific legislative provision. In my opinion, it cannot have been the intention of the legislature that the employer could circumvent this procedure by commencing proceedings under s 60 in a situation to which s 61 applies.
35 His Honour also held as follows 16:
In my opinion, the proper interpretation of s 60 is that it is not limited to matters going to the heart of the employer's liability to make weekly compensation payments. It can apply to a dispute which arises from changing circumstances but not where the dispute is amenable to review under s 61. (Emphasis added)
36 Owen J cautioned that, when understood in its legislative context, 'care needs to be taken to ensure that [s 60] is kept within limited bounds' 14. In my view, the conferral of a statutory stay on the discontinuance or reduction of weekly payments where a worker applies for an order under s 61(3) of the WCIM Act, and the greater scope for argument conferred on a worker by s 61 of the WCIM Act when compared with s 60 of the WCIM Act, provides further textual and contextual support for the statutory interpretation of the court in Star Broken Meats and underscores the need for s 60 to be 'kept within limited bounds'.
37 The arbitrator did not err in law in considering whether the employer could have issued a notice under s 61 of the WCIM Act, because, on the proper interpretation of the legislative scheme comprising s 60 and s 61, as determined by the Full Court in Star Broken Meats, an application could not properly be brought by Regis under s 60, in circumstances where the substance of the dispute falls within the scope of s 61 of the WCIM Act.
38 In circumstances where s 61 of the WCIM Act is an available enabling provision for an employer, the employer cannot make an application in relation to substantially the same dispute under s 60 of the WCIM Act. If an employer seeks to do so, then the s 60 application is not competent on the proper interpretation of s 60 and s 61 of the WCIM Act and should be refused by the arbitrator on that threshold basis. In such circumstances, the arbitrator does not need to determine whether there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments under s 60 of the WCIM Act.
39 However, in this case, the arbitrator did not in fact determine that s 61 of the WCIM Act is an available enabling provision for the employer. Rather, she refused the s 60 application for the reason that Regis 'has not persuaded me that sections 61 or 62 are not available to it' [25].
40 In my view, in order to dismiss Regis' application on the threshold basis that the s 60 application is not competent, the arbitrator would have had to make a positive finding that s 61 of the WCIM Act is applicable to the substance of the dispute. It was not sufficient to make a finding that she was not persuaded that s 61 does not apply. The arbitrator erred in law in this respect.
41 Furthermore, whereas Ms Hunter contended that Regis' application is not competent under s 60 of the WCIM Act, because the dispute is amenable to resolution under s 61 of the WCIM Act, Ms Hunter did not make any submission in relation to the availability of s 62 of the WCIM Act. In particular, Ms Hunter did not submit that the application purportedly brought by Regis under s 60 of the WCIM Act is incompetent, because an application in relation to substantially the same dispute could have been brought by Regis under s 62 of the WCIM Act. As Ms Hunter did not advance any such contention, Regis did not present any submission in relation to it.
42 The arbitrator dismissed Regis' application, in part, on the basis that Regis 'has not persuaded me that … [s] 62 [is] not available to it' [25]. In doing so, the arbitrator erred in law in two respects.
43 First, in order to dismiss Regis' application as incompetent on this basis, the arbitrator would have had to make a positive finding that s 62 is applicable to the substance of the dispute. The arbitrator did not make such a finding.
44 Secondly, given that Ms Hunter did not argue that the s 60 application is incompetent in consequence of the availability of s 62, and given that the arbitrator did not invite submissions from the parties in relation to that issue, there was a denial of procedural fairness in the resolution of the application, in part, on the basis of the potential availability of s 62.
45 The errors of law are material to the arbitrator's decision in the sense that, but for the errors, the decision might have been different. In my view, the errors vitiate the arbitrator's decision. Leave to appeal should therefore be granted.
Disposition of appeal
46 For reasons given earlier, the arbitrator was correct to consider the threshold question as to whether the application by Regis could properly be brought under s 60 of the WCIM Act. If, in fact, in the circumstances of this case, s 61 of the WCIM Act applies in relation to Regis' contention that Ms Hunter has failed to mitigate her loss by refusing to undertake phlebotomy training, then Regis' application is incompetent and must be dismissed on that threshold basis.
47 Section 61(1) of the WCIM Act sets out four circumstances in which an employer may discontinue or reduce weekly payments of compensation to a worker. It is common ground that none of the first three circumstances referred to in s 61(1), namely 'the consent of the worker', 'an order of an arbitrator', and 'the worker has returned to work', are applicable in this case. Regis submits that neither of the two limbs of the fourth circumstance referred to in that provision, namely 'a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury', is applicable in the circumstances of this case.
48 Regis submits, therefore, that it could not validly issue notice of intention to discontinue or reduce Ms Hunter's weekly payments of compensation and serve the notice on her under s 61(1) of the WCIM Act.
49 Ms Hunter concedes that the first limb of the fourth circumstance referred to in s 61(1) of the WCIM Act ('a medical practitioner has certified that the worker has total or partial capacity for work') is not applicable in the circumstances of this case. However, Ms Hunter submits that the second limb of the fourth circumstance ('a medical practitioner has certified … that the incapacity is no longer a result of the injury') is applicable in the circumstances of this case. I agree with this submission.
50 As noted earlier, in March 2016, Mr Hill indicated in a report that Ms Hunter was fit to work as a phlebotomist. In my view, in substance, this constitutes certification by a medical practitioner that Ms Hunter's incapacity is no longer a result of the compensable injury, because she is fit to work as a phlebotomist.
51 Mr Hill's report of March 2016 is referred to in Regis' submissions at first instance and on appeal, but is not before the court. It may be necessary for Mr Hill to provide a fresh report/certificate in which he specifically, and in terms, certifies that 'the incapacity is no longer a result of the injury' and sets out 'the grounds of the opinion'. However, such a fresh report/certificate would be consistent with Mr Hill's opinion as expressed in March 2016 and would be readily available to Regis for the purposes of issuing a notice under s 61 of the WCIM Act.
52 Furthermore, I accept Ms Hunter's submission that:
The essence of the employer's argument here was that by declining to take up the opportunity to move towards phlebotomy in favour of retaining her career as an enrolled nurse the worker here was unreasonably failing to mitigate her loss. That argument … is an argument that her continuing incapacity results from that unreasonable refusal (ts 20).
53 In my view, Mr Hill's opinion that Ms Hunter is fit to work as a phlebotomist enables Regis to issue a notice of its intention to discontinue or reduce the weekly payments of compensation on the basis that Ms Hunter's incapacity to work is no longer a result of the injury she sustained on 28 June 2013. Ms Hunter would then have the statutory protection of 21 days in which to consider her position, while continuing to receive weekly payments of compensation, and, if she disputes Regis' right to discontinue or reduce the weekly payments, to apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced under s 61(3) of the WCIM Act. Until the determination of that proceeding, Ms Hunter would have the benefit of a statutory stay on discontinuance or reduction of weekly payments of compensation.
54 If Ms Hunter applies for an order under s 61(3) of the WCIM Act that the weekly payment shall not be discontinued or reduced, that proceeding provides an appropriate forum in which to resolve Regis' contention that Ms Hunter has failed to mitigate her loss by refusing to undertake phlebotomy training. Ms Hunter has foreshadowed a responsive contention that she has acted reasonably to mitigate her loss by participating in the return-to-work program and by her willingness to continue to increase her hours towards full-time employment as an enrolled nurse (although avoiding repetitive bending, prolonged standing, sitting and walking, and lifting certain weights). A proceeding under s 61(3) of the WCIM Act would enable both parties to present their arguments and for the arbitrator hearing that matter to adjudicate on the merits of the dispute.
55 It follows that, in light of the decision of the Full Court in Star Broken Meats, Regis' application is not competent under s 60 of the WCIM Act and should be refused on that threshold basis.
Conclusion
56 Leave to appeal should be granted and the appeal dismissed.
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