Regis Aged Care Pty Ltd v Hunter
[2018] WASCA 50
•13 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: REGIS AGED CARE PTY LTD -v- HUNTER [2018] WASCA 50
CORAM: MURPHY JA
BEECH JA
ALLANSON J
HEARD: 6 MARCH 2018
DELIVERED : 13 APRIL 2018
FILE NO/S: CACV 17 of 2017
BETWEEN: REGIS AGED CARE PTY LTD
Appellant
AND
MAUREEN HUNTER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PARRY DCJ
Citation: REGIS AGED CARE PTY LTD -v- HUNTER [2017] WADC 12
File Number : APP 79 of 2016
Catchwords:
Workers' compensation - Weekly payments of compensation - Employer applied under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) for order discontinuing or reducing payments - Whether employer could have invoked s 61 of the Workers' Compensation and Injury Management Act 1981 (WA) - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 60, s 61
Result:
Leave to appeal granted
Appeal upheld
Orders of primary judge set aside
Category: B
Representation:
Counsel:
| Appellant | : | Mr D R Clyne |
| Respondent | : | Mr M J Lourey |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Chapmans Barristers and Solicitors |
Case(s) referred to in decision(s):
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Department of Education v Kenworthy (1990) 3 WAR 1
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Qantas Flight Catering v Joncerski [2004] WASCA 121
Regis Aged Care Pty Ltd v Hunter [2017] WADC 12
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
Vurlow v Leighton Nursing Home [1978] WAR 15
JUDGMENT OF THE COURT:
Introduction
The appellant (the employer) seeks leave to appeal against the decision of the primary judge[1] dismissing an appeal against the decision of an arbitrator made under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). Section 60 permits an arbitrator to order that weekly compensation payments be discontinued or reduced. Both the arbitrator and the primary judge found that the employer could not invoke s 60 because the employer's proper remedy was under s 61.
[1] Regis Aged Care Pty Ltd v Hunter [2017] WADC 12 (primary reasons).
In our opinion, for the reasons that follow, the primary judge erred in coming to that view, and the employer's appeal must be upheld.
Background
The background facts are not in dispute and may be shortly stated.
The respondent (the worker) is an enrolled nurse who sustained a right hip injury on 28 June 2013 while she was manually handling a patient in the course of her employment with the employer.[2] The employer admitted liability and weekly payments commenced.[3]
[2] Arbitrator's reasons [4]; primary reasons [3].
[3] Arbitrator's reasons [4]; primary reasons [4].
By application dated 10 June 2016, the employer sought an order for suspension of the respondent worker's weekly payments, relying on s 60 of the Act. The employer contended that there was a genuine dispute as to liability to pay compensation to the worker by reason of the alleged failure of the worker to mitigate her loss in failing to retrain in phlebotomy.[4]
[4] Phlebotomy involves taking blood from a patient for examination or transfusion.
The employer's application annexed[5] a bundle of supporting documents.[6] The bundle included a report dated 9 March 2016 by Mr J M Hill, a consultant orthopaedic surgeon, to which we will refer in detail below.
[5] As annexure B.
[6] White AB 57, 65 ‑ 148.
Before the arbitrator, the worker disputed that the employer's application was competently made pursuant to s 60, asserting that, instead, the remedy for the employer lay under s 61 of the Act. Further or alternatively, the worker denied that she had failed to mitigate her loss.[7]
[7] Arbitrator's reasons [3].
It is convenient to outline the statutory framework, before turning to the reasons of the arbitrator and the primary judge.
The Act
The material features of the scheme for workers' compensation created by the Act may be summarised as follows.
By s 3(a), one of the purposes of the Act is:
(a)to establish a workers’ compensation scheme for Western Australia dealing with -
(i)compensation payable to or in respect of workers who suffer an injury; and
(ii)the management of workers’ injuries in a manner directed at enabling injured workers to return to work; and
(iii)specialised retraining programs for injured workers; and
(iv)ancillary and related matters[.]
Part III of the Act is concerned with compensation.
If an injury of a worker occurs, the employer is liable to pay compensation in accordance with sch 1.[8] The concept of 'injury' is defined so as to provide the requisite statutory connection with the worker's employment.[9] For example, 'injury' includes a personal injury by accident arising out of or in the course of employment. It also includes diseases and the recurrence, aggravation or acceleration of pre‑existing diseases in circumstances specified in the definition of 'injury' in s 5 of the Act.
[8] Section 18.
[9] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 [6].
Weekly payments of compensation are payable where the worker has total or partial incapacity for work resulting from the injury,[10] or deemed total incapacity.[11] Thus, in order for an employee to obtain weekly compensation payments, it is necessary to establish both incapacity and injury.[12] As to the meaning of 'incapacity', which is not defined in the Act, see Catholic Education Office of WA v Granitto.[13]
[10] Schedule 1, cl 7.
[11] Schedule 1, cl 8.
[12] Catholic Education Office of WA v Granitto [2012] WASCA 266 [21] and cases there cited.
[13] Granitto [22], citing Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171, 178.
The employer is liable to pay compensation under the Act from the date of incapacity resulting from the injury.[14]
[14] Section 21.
Division 5 of pt III, comprising s 56 ‑ s 72B, governs commencement, review, suspension and cessation of weekly payments.
Section 56 makes provision for weekly payments to cease, subject to specified exceptions, when the worker reaches a stipulated age.
Proceedings for the recovery under the Act of compensation for injury cannot be maintained unless notice of the injury is served on the employer[15] and a claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury.[16]
[15] Sections 178, 179.
[16] Section 178(1)(b).
Sections 57A and 57B provide elaborate procedures for dealing with claims for compensation by way of weekly payments for total or partial incapacity. The sections are engaged when, among other things, the worker serves on the employer a signed certificate of a medical practitioner in the prescribed form containing the information sought in that form. The prescribed form seeks, among other things, information as to the worker's work capacity.[17]
[17] See section 6 of Form 3 'First Certificate of Capacity' in App 1 of the Workers' Compensation and Injury Management Regulations 1982 (WA).
If the insurer or, where there is no insurer, the employer, does not dispute liability for weekly payments, the employer must commence weekly payments within the short time stipulated in s 57A and s 57B. If liability is disputed, liability to make the weekly payments may be determined by an arbitrator on application by the worker or by the employer.[18]
[18] Section 58.
Sections 60, 61 and 62 of the Act provide as follows:
60.Discontinuing or reducing weekly payments, order as to
(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.
61.Discontinuing or reducing weekly payments without order
(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).
(2)Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement -
(a)informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein; and
(b)informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his injury; and
(c)containing such other information as may be prescribed.
(2a)If a person is required to give notice under subsection (1) and -
(a)fails to give the notice within the period referred to in that subsection; or
(b)gives a notice that does not comply with subsection (2),
the person commits an offence.
Penalty: $2 000.
(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.
(4aa)A reference in subsection (1), (3) or (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer's insurer.
(4a)Upon the hearing of an application referred to in subsection (3) an arbitrator -
(a)may, where the case requires, take into account whether -
(i)a return to work program has been established for the worker under section 155C(1); and
(ii)the establishment, content and implementation of the return to work program are in accordance with the code as defined in section 155; and
(iii)the worker has participated in the return to work program,
and for the purposes of determining the application accordingly treat the worker's incapacity as being of such degree as the arbitrator sees fit; and
(b)shall, where the case requires, take into account matters referred to in clause 8.
(5)Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.
Penalty: $2 000.
(6)A conviction for an offence that is a contravention of subsection (5) shall not affect any liability for the making of weekly payments of compensation under this Act.
(7)Subsections (1) and (2) do not apply to a discontinuance of payments -
(a)on payment in full of the prescribed amount; or
(b)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or
(ba)if section 93E(8) or 93P(2)(b) applies to the payment of compensation; or
(c)on suspension of payments in accordance with section 72, or 145D; or
(d)on failure to comply with section 69 by a worker who does not reside in the State.
(8)Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).
62.Reviewing and discontinuing, suspending or changing weekly payments
(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.
The arbitrator's reasons
The arbitrator adopted the legal principles relevant to s 60 of the Act outlined by Staude DCJ in The State of Western Australia (Department of Education) v Leek[19] by reference to what had been said by Owen J in Taylor v Star Broken Meats.[20] In summary, s 60 permits the suspension of weekly payments only in situations in which s 61 and s 62 did not apply.
[19] The State of Western Australia (Department of Education) v Leek [2014] WADC 10 [87] ‑ [88].
[20] The decision in Taylor v Star Broken Meats (Unreported, WASCA , Library No 920434, 26 August 1992) is explained later in these reasons.
The arbitrator noted that, in Leek's case, Staude DCJ found that it was open to the employer to raise a dispute as to liability on the basis that the worker's entitlement was put in issue by her failure to mitigate her loss. The arbitrator expressed the view that it was the way in which the worker in Leek's case failed to mitigate her loss that meant that applications pursuant to s 61 and s 62 were not open to the employer. The arbitrator observed that the worker in Leek's case had refused to communicate or cooperate to the point of not providing information as to her current telephone and number and address, and failing to attend an appointment for a medical examination.[21]
[21] Arbitrator's reasons [13], referring to Leek [96], [99].
The arbitrator recorded the employer's submissions that:
(1)it could not serve a s 61 notice because it was not arguing that the respondent worker was fit to return to her pre‑accident employment as an employed nurse or that she was no longer incapacitated as a consequence of her compensable injury;[22] and
(2)it was unable to file a s 62 application, notwithstanding that on the evidence the worker was medically capable of working as a phlebotomist, because the worker had not completed training in the field.[23]
[22] Arbitrator's reasons [15].
[23] Arbitrator's reasons [18].
The arbitrator also recorded the worker's submission that the employer was arguing, in essence, that the incapacity no longer resulted from injury but was by then the result of the worker's alleged failure to mitigate her loss. Consequently, the worker submitted that the dispute was amenable to resolution by s 61.[24]
[24] Arbitrator's reasons [19].
After again referring to Leek's case, the arbitrator concluded as follows:
24.However in 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 co-operate to the point of not providing information as to her current contact details such that the application 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.
25. 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.
Consequently, the arbitrator dismissed the employer's application without dealing with the merits of the question of whether there was a genuine dispute regarding whether the worker had failed to mitigate her loss such that weekly payments should be discontinued.
The employer's appeal to the District Court
The employer filed an appeal notice in the District Court, seeking leave to appeal, pursuant to s 247 of the Act, from the arbitrator's decision.
Section 247 of the Act provides, relevantly:
247. Appeal against arbitrator’s decision made under Part XI
(1)If written reasons for an arbitrator’s decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
…
(7)On hearing an appeal made under this section, the District Court may -
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
The employer sought leave to appeal to the District Court on 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 [Act].
2.The arbitrator erred in law in dismissing [the employer's] application on the basis that it was open for [the employer] to:
(a)issue a notice pursuant to s 61 of the [Act]; and
(b)issue an application pursuant to s 62 of the [Act].
The reasons of the primary judge
As to the requirement of s 247 of the Act that an appeal involve a question of law, the primary judge applied the decision of this court in BHP Billiton Iron Ore Pty Ltd v Brady[25] that this required that an error of law or an error of mixed fact and law has occurred.[26]
[25] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
[26] Primary reasons [16].
The primary judge rejected the employer's submission that the arbitrator erroneously focused on whether it was open for the employer to serve a notice under s 61 rather than dealing with the real issue of whether there was a dispute as to liability under s 60 of the Act. The primary judge found that, properly understood, the arbitrator's reasons revealed that she had correctly focused on the threshold question of whether the application could properly be brought under s 60 of the Act, when s 61 or s 62 were also potentially relevant.[27] The primary judge found that the approach adopted by the arbitrator reflects the law stated by the Full Court in Star Broken Meats.[28] After a detailed consideration of Star Broken Meats, the primary judge concluded that the arbitrator did not err in law in considering whether the employer could have issued a notice under s 61 of the Act, because, as the scheme was interpreted by the Full Court in Star Broken Meats, an application could not properly be brought by the employer under s 60 in circumstances where the substance of the dispute fell within s 61.[29]
[27] Primary reasons [23] ‑ [24].
[28] Primary reasons [25].
[29] Primary reasons [37].
However, the primary judge found that the arbitrator had erred in that she did not make a positive finding that s 61 was an available mechanism for the employer. Rather, she refused the application under s 60 for the reason that the employer had not persuaded her that s 61 or s 62 were not available to it.[30] Further, insofar as the worker had not argued that s 62 was available and thereby made the application incompetent, in circumstances where the arbitrator did not invite submissions from the parties in relation to that issue, there was a denial of procedural fairness in resolving the application, in part, on the basis of the potential availability of s 62.[31]
[30] Primary reasons [39], referring to the arbitrator's reasons [25].
[31] Primary reasons [44].
Consequently, the primary judge granted leave to appeal.[32]
[32] Primary reasons [45].
His Honour then went on to determine the merits of the appeal. In doing so, the judge focused on whether s 61 of the Act applied.
The only limb of s 61 relied on by the worker was that 'a medical practitioner has certified … that the incapacity is no longer a result of the injury'.[33] The primary judge accepted the worker's submission that this limb applied.[34] Grounds 1 and 2 of this appeal challenge this conclusion. We will outline his Honour's reasons for this conclusion later in these reasons, in dealing with those grounds.
[33] Primary reasons [47] ‑ [49].
[34] Primary reasons [49] and following.
His Honour then explained the consequences, and benefits for the worker, of his view that the appropriate procedure was for the employer to issue a notice under s 61, thereby enabling the worker to apply for an order under s 61(3) that the weekly payments not be discontinued or reduced.[35]
[35] Primary reasons [53] ‑ [54].
Consequently, the judge concluded that the employer's application was not competent under s 60 of the Act and should be refused on that basis.[36]
[36] Primary reasons [55].
Grounds of appeal
The employer advances three grounds of appeal to this court, to the following effect:
1.The primary judge erred in law in finding that s 60 of the Act did not apply on the basis that s 61 of the Act applied instead.
2.The primary judge erred in law in wrongly determining that s 61 of the Act applied, when there was no legal or factual basis for so holding.
3.The primary judge erred in law and denied the appellant natural justice in determining the appeal without considering a report of Mr Hill, consultant orthopaedic surgeon, dated 9 March 2016.
Leave to appeal
Although not referred to in the employer's submissions, the employer requires leave to appeal from the decision of the primary judge. Section 254 of the Act provides that an appeal may be made to this court in respect of a judgment in proceedings in the District Court under pt XIII of the Act, but the appeal must relate to a question of law and leave to appeal must be obtained from this court.
This court's power to grant leave to appeal is not restricted or qualified except that the appeal must relate to a question of law. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.[37] Among the matters relevant to whether that is so will be whether the decision was wrong or attended with sufficient doubt as to justify leave, and whether substantial injustice would be done by leaving the decision unreversed.[38]
[37] Napier v BHP [73].
[38] Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200 [31].
Grounds 1 and 2 relate to a question of law in that they raise issues as to the proper construction and application of s 60 and s 61 of the Act.[39]
[39] Compare Napier v BHP [78].
We will return to the question of leave after considering the merits of the appeal.
Grounds 1 and 2 can conveniently be considered together.
Grounds 1 and 2 - was s 61 available to the employer?
Introduction
Grounds 1 and 2 both challenge the primary judge's reasoning that, because s 61 of the Act was available to the employer, it could not properly invoke s 60.
The employer does not challenge the proposition, supported by Star Broken Meats, that if s 61 is available to an employer, the employer may not invoke s 60.[40] Rather, the employer contends that, in the circumstances of this case, there was no room for the employer to invoke s 61 and, consequently, the arbitrator erred in not determining the employer's application under s 60 on its merits.
[40] Appeal ts 17 ‑ 18.
For the reasons that follow, we accept this contention.
Legal principles
The effect of s 60 ‑ s 62 may be summarised as follows. Under s 60, where an employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation, or as to quantum, the arbitrator may order that the payments be suspended or discontinued or reduced. By s 61, upon giving a worker 21 days' notice, an employer can discontinue or reduce payments if the worker has returned to work or if 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. Otherwise, subject to presently immaterial exceptions,[41] the employer may only discontinue or reduce payments if the worker consents or if an arbitrator so orders. If, upon receipt of the 21‑day notice, the worker disputes the right of his employer to discontinue or reduce the weekly payments, the worker may apply for an order of an arbitrator that the weekly payments not be discontinued or reduced.[42] Section 62 permits an employer or a worker to apply to an arbitrator to discontinue, reduce or increase the weekly payments having regard to the present or past condition of the worker.
[41] Section 61(7), s 61(8), s 84.
[42] Section 61(3).
An element of the statutory scheme is that once weekly payments have been commenced, an employer is not permitted to reduce or discontinue them other than as authorised by the Act.[43]
[43] Department of Education v Kenworthy (1990) 3 WAR 1, 17; Star Broken Meats (9) (Owen J).
The evident scheme of these provisions was outlined by Murray J, with whom Roberts‑Smith and McLure JJ agreed, in Qantas Flight Catering v Joncevski,[44] as follows:
Section 61 finds its place among provisions which are designed to ensure that a worker in receipt of weekly payments of compensation has some guarantee of their continuance, except in the limited circumstances to which s 61(7) and (8) refer, or where it is determined that there is no continuing entitlement to them. As to that, the clear purpose of s 61(1) is to limit the circumstances in which the employer may unilaterally discontinue or reduce the payments without the consent of the worker or an order of the Directorate. If the statutory procedure is followed by both the employer and the worker the result, on the hearing of a s 61(3) application, pursuant to s 61(4) and (4a), will be that there will be a capacity to examine the merits of the worker's entitlement to compensation.
In addition, under s 60, the employer may apply at any time for an order that the weekly payments be discontinued or reduced, or alternatively, under s 62, an application may be made to review the weekly payments. Where under s 60(2) the employer is seen to be genuinely in dispute as to the liability to pay compensation or the amount of such payments, then the payment may be suspended, in which case under s 63 no compensation is payable, or the payments may be reduced in amount. There is, in my opinion, under the statutory scheme, ample capacity for the employer to protect its position where a genuine dispute exists. Alternatively, if the worker consents, then, as has been seen, the employer may act unilaterally without the benefit of an order to discontinue or reduce the payments.
[44] Qantas Flight Catering v Joncevski [2004] WASCA 121 [18] ‑ [19].
In Star Broken Meats, Owen J, with whom Pidgeon J agreed and Rowland J generally agreed, construed s 61 and s 62. His Honour held that s 61 was a specific legislative provision requiring a 21‑day notice for the protection of the worker. Consequently, the Act should not be construed as permitting an employer to circumvent s 61 by commencing proceedings under s 60 in a situation to which s 61 applies.[45] Otherwise, s 60 is not limited, and can apply to disputes arising from changing circumstances.
[45] Star Broken Meats (15), (16).
These principles were applied by the arbitrator and by the primary judge. As we have said, there is no challenge on appeal to these general principles.
In order to invoke s 60, the applicant employer must show that it sincerely and seriously disputes the worker's claim.[46] That is a matter to be determined on the materials as a whole. It is not always necessary for an employer to file an affidavit reciting that the claim was sincerely and seriously disputed.[47]
[46] Star Broken Meats (19).
[47] Star Broken Meats (19).
Section 61 and its equivalent in the predecessor to the Act have been strictly construed in decisions of this court's predecessor. In particular, it has been held that a valid 21‑day notice and a medical certificate to one of the effects stated in s 61(1) are preconditions to the effective engagement by an employer of that provision. In Vurlow v Leighton Nursing Home,[48] Burt CJ construed s 12B of the Workers' Compensation Act 1912 (WA) (1912 Act). With one exception, that provision was in terms materially indistinguishable from s 61(1) of the Act.[49] Adjusting what Burt CJ said to take account of the change in statutory language, his Honour construed the provision as follows:[50]
[48] Vurlow v Leighton Nursing Home [1978] WAR 15.
[49] The exception is that the 1912 Act referred to a certificate that the worker 'has wholly or partially recovered', whereas the Act refers to a certificate that 'the worker has total or partial capacity for work'.
[50] Vurlow (16 - 17), see also 20, compare 25 - 26.
1.A medical certificate for the purpose of this section can take any form so long as it appears with reasonable clearness that a medical practitioner intends to and is expressing a conclusion by way of opinion on one of the following:
(a)that a worker has total capacity for work; or
(b)that a worker has partial capacity for work; or
(c)that the incapacity is no longer a result of the injury;
and the document sets out the grounds of that opinion.
2.The right of an employer under the section is conditioned on, among other things, service on a worker of a document by which a medical practitioner certifies to one or other of pars (a) ‑ (c) above.
3.If the document served by an employer does not meet the requirements set out in 1 above, a condition of the employer's right is unsatisfied and cannot be subsequently made good by the employer producing on application before an arbitrator one or more further certificates.
The difference between the third opinion (ie, the opinion referred to in par 1(c) of [53] above) and the first two opinions (ie, the opinions referred to in pars 1(a) and (b) of [53] above) is that the third opinion recognises the continuing incapacity for work (total or partial, as the case may be), but expresses the view that the incapacity is not now (no longer) a result of the relevant injury.
In Heat Containment Industries v Kimberley,[51] Malcolm CJ construed s 61 as follows:
1.The relevant medical certificate must comply with the requirements of s 61, adopting what had been said by Burt CJ in Vurlow.
2.If a 21‑day notice is given by an employer but is defective because the medical certificate does not comply with s 61, the notice is invalid.
3.In those circumstances, the position will be equivalent to where no notice was given, so that an employer's conditional right under s 61 will not have arisen.
Disposition
[51] Heat Containment Industries v Kimberley (1990) 2 WAR 47, 48 ‑ 49.
In our respectful view, for the reasons that follow, it was not open to the primary judge to conclude, as he did,[52] that, in the present case, 'a medical practitioner has certified … that the incapacity is no longer a result of the injury'.
[52] Primary reasons [49].
His Honour's reasons for this conclusion may be summarised as follows:
(1)In March 2016, Mr Hill indicated in a report that the worker was fit to work as a phlebotomist. In substance, the judge said, that constituted certification by a medical practitioner that the worker's incapacity is no longer a result of the compensable injury, because she is fit to work as a phlebotomist.[53]
(2)The judge recorded that Mr Hill's report was referred to in the submissions of the employer, but was not before his Honour. The judge observed that 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, the judge observed that such a fresh report/certificate would be consistent with Mr Hill's opinion as expressed in March 2016 and would be readily available to the employer for the purposes of issuing a notice under s 61 of the Act.[54]
(3)The judge accepted the worker's submission that the essence of the employer's argument was that, by declining to take up the opportunity to move towards phlebotomy in favour of retaining a career as an enrolled nurse, the worker was unreasonably failing to mitigate her loss, which is an argument that the worker's continuing incapacity results from that unreasonable refusal.[55]
[53] Primary reasons [50].
[54] Primary reasons [51].
[55] Primary reasons [52].
The medical practitioner, Mr Hill, had, as the judge found, indicated that the worker was fit to work as a phlebotomist. From that, his Honour concluded, without explanation, that in substance this constitutes certification that the worker's incapacity was no longer a result of the compensable injury, because she is fit to work as a phlebotomist.[56] In our respectful opinion, there is no reasonable basis for this conclusion. The making of weekly payments is predicated on there having been a medical certificate stating an incapacity to work. Whether a worker's incapacity can be said to be no longer a result of the injury requires attention to a question of causation. That question is whether, as a matter of medical opinion, the present incapacity of the worker is not (and so, in the terms of the statute, the incapacity is no longer) a result of the injury. Mr Hill's report, as referred to by the primary judge, did not relate to that topic. So far as the content of Mr Hill's report was referred to by his Honour, it is directed to the extent of the worker's capacity or incapacity to do a particular kind of work. It is not directed to the extent of the causal connection between the worker's incapacity and the injury.
[56] Primary reasons [50].
Further, the judge accepted the worker's submission that, in its essence, the employer's argument to the arbitrator was that by declining to take up retraining in phlebotomy, the worker was unreasonably failing to mitigate her loss and that her continuing incapacity results from that unreasonable failure or refusal.[57] The worker repeated this submission on appeal to this court.[58] In our respectful view, the judge's acceptance of that submission reveals an erroneous approach to s 61. The worker's submission, as just outlined, invited a characterisation of the employer's contention. Section 61 relevantly directs attention to the substance of the medical certificate, not to the substance of an employer's contention. The worker submits on appeal that the medical report 'enabled [the employer's] argument to be aired'.[59] That is not sufficient to engage s 61. Rather, the report must, in substance, be a certification of the character stipulated in s 61. A medical certificate of the character stipulated in s 61 is an essential precondition to an employer's right to invoke s 61.[60]
[57] Primary reasons [52].
[58] Appeal ts 25 ‑ 26.
[59] Appeal ts 26.
[60] Vurlow (16 ‑ 17); Heat Containment v Kimberley (48 ‑ 49).
Moreover, the employer's contention was that the worker's unreasonable refusal to retrain meant that her continuing incapacity for work resulted from her unreasonable refusal and not from her injury. The unreasonableness of the worker's conduct is an essential integer of that contention. Nothing in Mr Hill's report expressed, or could reasonably be supposed to have expressed, any view on the question of whether the worker's failure to retrain was unreasonable. By definition, as the worker accepted on appeal,[61] that is not a matter for medical expert opinion. The primary judge found[62] that a fresh report/certificate from Mr Hill certifying, specifically and in terms, that 'the incapacity is no longer a result of the injury' would be consistent with Mr Hill's opinion as expressed in March 2016 and would be readily available to the employer. For the reasons just given, in our respectful opinion, the judge erred in so finding.
[61] Appeal ts 26 ‑ 27.
[62] Primary reasons [51].
Both the worker and the primary judge relied solely on one limb of s 61, namely that 'a medical practitioner has certified … that the incapacity is no longer a result of the injury'. For the reasons we have given the report of Mr Hill could not be characterised as within the ambit of that description.
This conclusion is confirmed by a consideration of the terms of the report itself.
In his report, Mr Hill addressed a compound series of questions as to the worker's capacity for work, her need for treatment arising from the injury on 28 June 2013, whether she has recovered from that injury and whether any incapacity symptoms or need for treatment related to a pre‑existing condition.[63] Mr Hill's response was in three paragraphs. The first paragraph dealt with the worker's capacity to work both as a nurse and as a phlebotomist. The second paragraph dealt with questions of treatment and exercise. The third paragraph evidently considered the final question of whether the worker had recovered from her injury on 28 June 2013 and whether any continuing incapacity, symptoms or need for treatment resulted from a pre‑existing condition rather than from the injury. Mr Hill referred to osteoarthritic changes in the worker's right hip which had occurred prior to 28 June 2013. However, Mr Hill expressed the view that it was not possible to say that the worker had completely recovered from the aggravation that occurred on 28 June 2013 in that her current incapacity entirely relates to the underlying osteoarthritis. In other words, this part of Mr Hill's report addressed the question of whether the worker's incapacity was no longer a result of the injury, but determined that such a conclusion could not be drawn.
[63] WAB 129.
Thus, Mr Hill's report cannot be said to have been a certificate that the incapacity is no longer a result of the injury. Moreover, nothing in Mr Hill's report indicated that, with appropriate further questions, Mr Hill would certify to that effect. That being so, s 61 was not available to the employer.
As we have already noted, the worker did not contend, in this court, or below, that Mr Hill's report certified that the worker had a current capacity for work within the meaning of s 61. Consequently, it is not necessary to deal conclusively with any such contention. However, we would make the following observations that suggest that any such contention would have failed.
Mr Hill's report does no more (relevantly, for present purposes) than express an opinion that the worker has the capacity to work as a phlebotomist. Whether the worker has, on that account, capacity for work within the meaning of s 61 will depend upon whether work as a phlebotomist is part of the labour market in which the worker might reasonably be expected to work.[64] That is a matter the proof of which cannot be established merely by medical evidence of the character required under s 61. On that basis, Mr Hill's report could not be characterised as certifying that the worker has a current capacity for work in a part or parts of the labour market in which she might reasonably be expected to work.
[64] See the discussion of 'incapacity' in Arnotts (177 - 178), referred to in Granitto [22].
For the above reasons, grounds 1 and 2 must be upheld.
In the circumstances, it is unnecessary to deal with ground 3.
Leave to appeal
It is in the interests of justice that leave to appeal be granted. The effect of the primary judge's decision, if left unreversed, is that the merits of the employer's application under s 60 would never be considered. Thus, the employer would suffer substantial injustice if the decision is left unreversed. Further, for the reasons we have given, in our respectful opinion, the decision of the primary judge was attended with error.
The orders that should be made
There should be orders to the following effect:
1.Leave to appeal be granted.
2.The appeal be upheld.
3.The orders of the primary judge be set aside.
4.In lieu of the orders made by the primary judge, there be the following orders:
(a)leave to appeal against the arbitrator's decision of 30 September 2016 be granted;
(b)the appeal be upheld;
(c)the arbitrator's decision to refuse the employer's application be set aside;
(d)the employer's application under s 60 be remitted to the arbitrator for determination on its merits in accordance with these reasons.
The employer submitted that this court should determine the merits of the issue as to whether there was a genuine dispute regarding whether the worker had failed to mitigate. Assuming, without deciding, that this court has power to do so, it would not be appropriate for this court to undertake that exercise in circumstances where the question has not been considered by a specialist arbitrator constituted under the Act.
We would hear further from the parties as to costs in this court and below.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO BEECH JA12 APRIL 2018
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