Robert Howard Hill v Workers Rehabilitation & Compensation Corporation No. Scgrg-97-12 Judgment No. 6178 Number of Pages 15 Workers' Compensation

[1997] SASC 6178

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, DUGGAN AND LANDER JJ

Workers' compensation - proceedings to obtain compensation - determination of claims - appeal from a decision of the Workers Compensation Appeal Tribunal - Tribunal heard an appeal from the determination of a Review Officer of three applications for review - appellant had received compensation for loss of earning capacity via an interim payment - Corporation requested certain information in order to make a further assessment - appellant applied for review of that request - Corporation ceased further payments during the period that the appellant was in default - appellant applied for review of that determination. - Interpretation of Workers Rehabilitation and Compensation Act - if the Corporation fails to make an assessment to which a worker is entitled the worker can seek an order in the nature of mandamus directing the Corporation to fulfil its statutory obligations - where the period of a current assessment has passed the Review Officer can make an order that the Corporation make payments to the worker during the period of the adjournment of the review - subsequent compliance by a worker does not prevent the Corporation recovering any payments made during an adjournment if the requirement imposed by the Corporation is adjudged reasonable - whether the requirements imposed by the Corporation were reasonable. WorkersRehabilitation and Compensation Act 1986 s35, 36, 38, 42A, 42B; Motor Vehicles Act 1959s127, referred to. Vlouhakis v Workcover Corporation (1996) 185 LSJS
473; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS
147; Wilson v Cutovic (1979) 23 SASR 77, applied.

ADELAIDE, 7 May 1997 (hearing), 28 May 1997 (decision)

#DATE 28:5:1997

#ADD 3:6:1997

Appellant:

Counsel: Mr E Reinboth

Solicitors: Stanley & Partners

Respondent:

Counsel: Mr T Stanley

Solicitors: Thomsons

Order: appeal allowed.

DOYLE C J

1. I agree that the appeal should be allowed and that the orders proposed by Lander J should be the orders of the Court. There is nothing that I wish to add to the reasons which he has given.

DUGGAN J

2. I agree that this appeal should be allowed for the reasons given by Lander J. I also agree with the other orders proposed by Lander J.

LANDER J

3. The appellant was injured in the course of his employment with Beaurepairs for Tyres on 30 June 1990 and as a result suffered a disability which is compensable under the Workers Rehabilitation and Compensation Act1986 (the Act). He has been incapacitated as a result of that disability for a period exceeding two years.

4. The appellant has also claimed that he has suffered stress, which he claims amounts to a compensable disability for the period since 16 January 1995. Although reference will be made to that claim, it is not before this Court on this appeal.

5. The appellant has appealed to this Court from a decision of the Workers Compensation Appeal Tribunal given on 6 December 1996. An appeal limited to a question of law lies to this Court by leave of the Court (s100).

6. In the summons seeking leave to appeal, the appellant sought a further order. "3. Further, or in the alternative that an order be made in the nature and having the effect of mandamus compelling the Corporation to make an interim assessment of the Appellant's loss of future earning capacity for the period 18th May 1995 to 2nd June 1996 pursuant to section 42A of the WorkersRehabilitation and Compensation Act 1986." 7. Perry J gave leave to appeal and referred the application for an order in the nature of mandamus to this Court to be dealt with at the same time as the appeal.

Weekly Payments

8. By reason of having suffered a compensable disability on 30 June 1990 the appellant became entitled to compensation under Division 2 of Part 4 of the Act, and in particular became entitled to weekly payments pursuant to s35 of that Act.

9. An entitlement to weekly payments continues whilst a worker has a compensable disability which results in incapacity for work and until the worker reaches retirement age. The assessment of those weekly payments is made in accordance with s35 of the Act.

10. The weekly payments to which a worker becomes entitled under s35 are not liable to be discontinued except in accordance with the provisions of s36 and s38. During the course of the worker's entitlement weekly payments may be reviewed in accordance with the procedures in s38 of the Act, which is a procedure which may be initiated either by the Corporation or by a worker or an employer requesting a review of the amount of weekly payments made to a worker who has suffered a compensable disability. If a period of incapacity continues for more than one year, which is the case here, the Corporation must conduct a review under s38 in the second year of incapacity and in each subsequent year of that incapacity.

11. The scheme of the Act is to ensure that a worker, who is entitled to weekly payments by reason of a compensable disability, continues to receive those weekly payments unless the Corporation is entitled to discontinue the weekly payments in accordance with the Act, and further it is envisaged that a worker will receive the appropriate amount of the weekly payments. The scheme of the Act is to ensure that those who have suffered injuries by reason of the circumstances in s30 of the Act are protected financially from the consequences of disabilities caused by those injuries.

Section 42A - Compensation For Loss Of Earning Capacity

12. Section 42A (which is in the same form now as it was when this matter was before the Review Officer and the Workers Compensation Appeal Tribunal) provides for the assessment by the Corporation of a worker's loss of future earning capacity as a capital loss. On 26 April 1994 WorkCover Corporation decided to make an assessment of the appellant's loss of future earning capacity.

13. Section 42A has a number of similarities to an assessment of damages for loss of future earning capacity at common law. The assessment requires a determination of the notional weekly earnings, less an estimation of income tax, which are then projected over the remainder of the worker's notional working life (s42A(2)(a)). The projections referred to in s42A(2)(a) are to be made on the basis of the rates of earnings current at the date of the assessment and without regard to the possibility of future changes in these rates, i.e. inflation is disregarded (s42A(3)(a)). The notional working life is the period over which the worker would have worked assuming that he or she had not been incapacitated, and that period has to be assessed having regard to the contingencies and vicissitudes of life that might in any event have prevented the worker from continuing in employment. The period will not, in any event, be taken to extend beyond the date on which weekly payments would have ceased to be payable upon retirement under s35(5) of the Act (s42A(3)(b)).

14. The capital loss is assessed by reference to a prescribed discount rate, which is prescribed by regulation 8AA(1) of the Workers Rehabilitation and Compensation (General) Regulations at 3 per cent (s42A(2)(c)). The Act requires that the capital loss will be taken to be 80 per cent of the present value of the loss indicated by the projection of the notional weekly earnings over the worker's notional working life in the value of the money at the date of the assessment (s42(2)(c)).

15. Different considerations apply in relation to the assessment of the capital loss of the loss of future earning capacity when the worker has suffered a partial incapacity rather than total incapacity. Those considerations are matters relevant to someone who retains some future earning capacity albeit diminished.

16. Whilst the assessment of the capital loss under s42A is carried out in much the same way as an assessment of loss of future earning capacity in common law claims, there are differences which are important. The major difference is, of course, the fact that the loss of future earning capacity in relation to a claim under the Act is fixed by statute at 80 per cent of the loss as assessed in accordance with the Act. However the assessment under the Act, like the assessment of damages at common law of a diminution in earning capacity, requires an evaluation of medical evidence and the facts and circumstances which bear upon a person's earning capacity and the exercise of that earning capacity.

17. It can be seen that s42A assumes that there will be a continuing loss of future earning capacity, either partial or total. Indeed s42A(1) prevents the assessment of such a capital loss unless the worker has suffered incapacity for work for a period exceeding two years prior to the assessment. The premise underlying the assessment is a total or partial loss of future earning capacity extending over the whole of the worker's notional working life.

18. The Corporation is not obliged to make a final assessment on the first occasion that it makes an assessment. The Corporation is entitled to make one or more interim assessments of loss as to nominated portions of the worker's notional working life before making a final assessment of loss (s42A(4)).

19. That allows the Corporation to make interim assessments over whatever period the Corporation elects to make the assessment, and allows the Corporation to make an assessment over a shorter period of time so as, of course, to allow the Corporation to reconsider, in its next assessment, the extent of the incapacity and the effect of that incapacity upon the assessment of the capital loss for the worker's continuing loss of future earning capacity.

20. Section 42A(5) allows for any assessment to be paid in a lump sum or, at the discretion of the Corporation, in instalments which are actuarially equivalent to that lump sum.

21. Section 42A(6) provides that where the Corporation pays or commences to pay compensation under s42A, the worker ceases to be entitled to weekly payments under Division 4.

22. That subsection is consistent with the premises underlying s42A itself. First, s42A contemplates that a worker has suffered an incapacity for more than two years. Secondly it contemplates that the worker has suffered either a total or partial loss of earning capacity which will extend over the whole of the worker's notional working life. Thirdly it assumes that that loss of future earning capacity can be assessed in accordance with s42A itself. Fourthly it assumes that an assessment will be made over the whole of the notional working life, although there may be interim assessments which will allow for interim payments. Therefore each interim and the final assessment will have regard to the worker's then circumstances.

23. In those circumstances it seems to me that, as the Corporation has recognised that the worker has suffered some diminution in his or her earning capacity over the whole of that worker's life, which is capable in the one assessment, or in assessments from time to time, of assessment by capital loss, then the capital loss whether paid in one or more lump sums, ought to be paid in substitution and satisfaction of any claim that that worker would have for weekly payments: Vlouhakis v WorkCover Corporation (1996) 185 LSJS 473; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147.

24. The worker's entitlement to weekly payments ceases as soon as the worker receives an assessment under s42A because the entitlement to the assessment of a capital loss is substituted for that previous entitlement to weekly payments. As soon as an assessment is made under s42A the worker thereafter becomes entitled to have the worker's loss of future earning capacity assessed in accordance with s42A and the worker continues to have that right throughout the whole of the worker's notional working life. The Corporation assumes a liability to continue to assess the loss of future earning capacity of the worker in accordance with s42A until the end of the worker's notional working life.

25. At the time that the circumstances giving rise to this Appeal arose s95 of the Act provided for a review procedure whereby persons affected by a decision of the Corporation could apply to the Corporation for a review of that decision.

26. Section 42A(9) is in the same form now as it was when the matter was before the Review Officer. It specifically provides for decisions which are not reviewable: (1) The following decisions of the Corporation are not reviewable - (a) a decision of the Corporation to make or not to make an assessment under this section (but an assessment is reviewable); (b) a decision of the Corporation as to whether to make a final assessment or one or more interim assessments; (c) a decision of the Corporation as to whether to pay an amount assessed under this section in a single lump sum or in instalments and, if the Corporation decides to pay in instalments, the Corporation's decision as to the frequency of those instalments." 27. A worker cannot seek a review of a decision of the Corporation to make or not to make an assessment under the section. That would prevent a worker seeking to argue by way of review that the worker's loss of future earning capacity should be assessed under s42A, if the Corporation has otherwise decided that it will continue to pay weekly payments under s35. I think the section also prevents a worker seeking a review of a decision by the Corporation not to make an assessment subsequent to an interim assessment. It was put that s42A(9)(a) only prevents the review of the first assessment made by the Corporation. The subsection is not clear but I think, on balance, the subsection prevents a worker seeking a review of the decision to make an assessment at all or the failure to make any assessment whether it be the first interim assessment or any subsequent assessment.

28. I think that is so because the section contemplates, as I have already said, that once an assessment has been made that the Corporation must make further interim assessments and a final assessment to cover the whole of a worker's notional working life. In those circumstances there is no possibility that a worker will not receive the benefits of subsequent assessment to which the worker is entitled. It follows that there is no need for a review procedure in relation to the failure of the Corporation to make assessments subsequent to the first interim assessment. I agree with Doyle CJ in Vlouhakis v WorkCover (supra), that if the Corporation failed to make an assessment to which a worker was entitled the worker could seek in this Court a declaration of the workers entitlement and an order in the nature of mandamus directing the Corporation to fulfil its statutory obligations. Section 42A(9)(a), in my opinion, precludes the review of the making or failing to make any assessment by the Corporation. Of course, as the subsection itself says, a worker is entitled to a review of the assessment itself.

Section 42B

29. Section 42B acts in aid of the operation of s42A. At the relevant time s42B provided: "42B. (1) For the purposes of this Division, the Corporation may, by notice in writing to the worker-- (a) require the worker to submit to an examination by a medical expert nominated by the Corporation; or (b) require the worker to furnish such information, relevant to the operation of this Division, as the Corporation thinks fit.

(2) If a worker fails to comply with a requirement under subsection (1) within the time allowed in the notice, the Corporation may-- (a) if no compensation has been paid under this Division - suspend any weekly payments being made to the worker; (b) if compensation has been paid under this Division - determine not to pay compensation in respect of the period of default.

(3) A requirement imposed by the Corporation under subsection (1) is, on the application of the worker made within the prescribed period in accordance with the regulations, subject to review by a Review Officer.

(4) Where a worker applies for a review under subsection (3), any weekly payments suspended under subsection (2) must be reinstated (to their previous level) until the matter is first brought before a Review Officer.

(5) If any proceedings before a Review Officer under this section are adjourned, the Review Officer may, on such terms and conditions as the regulations may prescribe, order that one or more payments be made to the worker during the adjournment.

(6) A Review Officer should, in considering whether or not to make an order under subsection (5), take into account-- (a) the reason or reasons for the adjournment; and (b) the conduct of the parties to the proceedings, and may take into account such other matters as the Review Officer thinks fit.

(7) Any period between the conclusion of a hearing before a Review Officer and the handing-down of the Review Officer's decision is to be regarded as an adjournment for the purposes of subsections (5) and (6).

(8) A Review Officer must, in hearing and determining any proceedings under this section, act with as much expedition as is reasonably practicable in the circumstances.

(9) On an application under this section, a Review Officer may-- (a) confirm, vary or quash the requirement imposed by the Corporation; (b) give such directions as the Review Officer thinks necessary to expedite any assessment under this Division.

(10) If a Review Officer decides in favour of the Corporation, the Corporation may, at the Corporation's discretion (but subject to the regulations) -- (a) recover any amounts paid under subsections (4) or (5) from the worker as a debt; or (b) set off any amounts paid under subsections (4) or
(5) against liabilities of the Corporation to make payments to the worker under this Act."

[Section 42B is now in a substantially different form.] 30. The purpose of s42B is to empower the Corporation to obtain information for the following purposes. First to determine whether or not any assessment ought to be made under s42A. Secondly to determine the quantum of the assessment under that section and thirdly, if an interim assessment has been made, to update the information available to the Corporation to determine the appropriate assessment for future interim assessments or a final assessment.

31. It operates to require the compulsory submission by a worker to an examination by a medical expert or by compelling a worker to furnish such information relevant to an assessment of loss of future earning capacity under s42A as the Corporation thinks fit. So long as a worker is receiving weekly payments under s35 a worker therefore, is to that extent, obliged to comply with s42B(1), even if the worker does not himself or herself seek an assessment under s42A.

32. Section 42B(2)(a) allows the Corporation, in the exercise of its discretion if the worker does not comply with either of the requests made under s42B(1), to suspend any weekly payments otherwise payable to the worker. That could only be in circumstances, as the subsection itself provides, where no compensation has been paid under s42A, because if compensation has been paid under s42A the worker has no entitlement to weekly payments under s42A(6).

33. It is s42B(2)(a) which provides, as it were, the incentive for the worker to co-operate in the providing of the information requested under s42B(1), which then allows the Corporation to make a determination as to whether or not it will make any assessment under s42A, and whether it will make an interim or final assessment and the quantum of that assessment.

34. Section 42B(2)(b) only applies in circumstances where there has been at least one assessment previously made under s42A and only when the last assessment was an interim assessment under s42A(4). That is so because if compensation has been paid under s42A, then the worker's entitlement to weekly payments has already ceased, and the worker has had substituted by way of entitlement assessments under s42A. Section 42B(2)(b) cannot of course logically apply if a final assessment has been made under s42A, because the Corporation would not seek any information in relation to the worker's circumstances after it had disposed of all of the worker's rights by the making of a final assessment under the Act.

35. Therefore s42B(2)(b) only applies to a worker in circumstances where the Corporation has previously determined that that worker has either a total or partial loss of future earning capacity and has made an interim assessment under s42A(4). Section 42B(2)(b) applies in circumstances where the Corporation wishes to have the information for the purpose of making a further interim or final assessment in relation to that worker.

36. Section 42B(3) specifically provides that any requirement imposed by the Corporation under s42B(1) is subject to review by a Review Officer. The purpose of the review is to review the reasonableness of a requirement by the Corporation either for the worker to submit to an examination by a medical expert or for the worker to furnish the information provided in 42B(1)(b). Any requirement by the Corporation that a worker submit to an examination by a medical expert must be a reasonable request. So also any requirement by the Corporation for the worker to furnish information relevant to an assessment under s42A must be a reasonable request. Moreover the time within which the worker is obliged to comply would also have to be reasonable.

37. Section 42B(1), in my opinion, is no different to s127 of the MotorVehicles Act which allows for a person against whom a claim is made for bodily injury, arising out of the use of a motor vehicle, to require the person making the claim to submit himself or herself for examination by a medical practitioner. In Wilson v Cutovic (1979) 23 SASR 77 a question was asked of this Court whether or not s127 of the Motor Vehicles Act required that a request for a submission for examination be in the circumstances of the case a reasonable request. In answer to that question King CJ said this: "The answer to this question is to be found in a passage in the judgment of Earl Loreburn L.C. in Morgan v William Dixon Ltd [1912] AC 74 at 78/79:

'The fourth clause of the First Schedule of the Workmen's Compensation Act confers upon the employer a right to have a workman who has given notice of an accident examined medically, and there is a duty on the part of the workman to submit himself to be examined; but the statute is silent, and the rules are partially and I may say mainly silent, as to the time, the place, and the conditions of this examination. Under those circumstances practically the common rule of law applies and imposes upon both parties the duty of acting reasonably and obeying the statute.'

This passage refers to a rule of law which is, in my opinion, applicable to s127 of the Motor Vehicles Act. The common rule of law as to reasonableness and obeying a statute involves, when applied to s127, that the claimant is not required to submit himself for examination except in response to a request which is reasonable as to the time, place and circumstances of the proposed examination and as to the identity of the medical practitioner who is to carry it out. Reasonableness is, of course, a question of fact to be determined by the tribunal of fact (Morgan v William Dixon Ltd; Smith v D Davis & Sons Ltd). The reasonableness of the request under s127 falls to be determined by the Court which is asked to give effect to the suspension of the claimant's rights under subsection (2). Counsel for both parties agree that the answer to this question should be, "Yes and what is reasonable is always a question of fact". I am content to adopt that formulation of the answer." 38. The provisions of s42B(3), enable a Review Officer to determine, on the application by a worker, whether the Corporation's requirements made under 42B(1) are reasonable and if any requirement of the Corporation is not reasonable then of course it is for a Review Officer to make a determination accordingly and set aside that requirement.

39. If a worker fails to comply with any requirement imposed by the Corporation under s42B(1) of the Act the Corporation may exercise the relevant powers under s42B(2) of the Act. The exercise of the power under s42B(2)(a) would mean that a worker who was still on weekly payments would suffer an immediate loss of those payments and would therefore become disentitled within that week to his or her weekly payments. The situation is a little different with respect to the power under s42B(2)(b). Clearly enough the Corporation would exercise its powers under s42B(1), in respect of those workers who have already received assessments, during the currency of an assessment. That is so because the Corporation would be seeking this information to make a further assessment, which it would be obliged to make at the expiration of the period over which the existing assessment had been made.

40. It was put that a decision to suspend weekly payments or the determination not to pay compensation in the period of default are decisions which are themselves subject to review. I do not agree with that submission. That would unnecessarily complicate the s42B review procedure itself which is intended to be an uncomplicated and expeditious procedure. But in any event the provisions of s42B(4) and (5) make a review of any decision made under s42B(2) unnecessary.

41. Section 42B(4) provides that any weekly payments suspended under ss(2) must be reinstated until the matter is first brought before a Review Officer. Consistent with the whole scheme of the Act, that protects a person, who is not presently subject to an assessment under s42A, and who is dependent upon weekly payments, from financial loss until the matter is brought before a Review Officer.

42. Section 42B(5) provides that a Review Officer may order that one or more payments be made to the worker during the adjournment. It is critical to notice that the payments referred to in s42B(5) are not weekly payments. S42B(5), in my opinion, does not confine the Review Officer to only ordering the making of weekly payments to those workers who are still receiving weekly payments under s35. The power is wider than that. Section 42B(5) allows the Review Officer to order either weekly payments to a person not subject to an assessment under s42A, or payments to a person who has been previously subject to an interim assessment under s42A, pending the hearing of the review.

43. There is no reason to read s42B(5) any more narrowly than that. That interpretation of s42B(5) is consistent with the understanding of the scheme of this part of the Act as I have explained it.

44. Therefore, in circumstances where the period of a current assessment has passed, the Review Officer can make an order that the Corporation make payments to the worker during the period of the adjournment of the review. There is nothing difficult about that. Review Officers, from time to time, must make assessments under s42A because their obligation is to review assessments under s42A(9)(a).

45. The occasions when a Review Officer will be called upon to consider ordering that a payment be made to a worker, who has previously been subject to a s42A assessment, will occur relatively infrequently. The request for information and therefore the request for review will occur, for the reasons already given, in the period covered by an interim assessment and it will only be when the review has not completed within that period that the exercise of this power will be contemplated. It should be an infrequent occasion that a review is not completed within the period covered by an interim assessment because the Review Officer is obliged to act with as much expedition as is reasonably practicable [s42B(8)].

46. The Review Officer can confirm, vary or quash any requirement imposed by the Corporation. If the Review Officer confirms any requirement the Corporation then has a discretion to recover any amounts paid under s42B(4) and (5) from the worker, or set off any amounts paid under s42B(4) and (5) against liabilities of the Corporation to make payments to the worker under the Act. [s42B(10)]

47. If a worker has failed to comply with a requirement under s42B(1) and has sought a review and received payments under s42B(4) and (5) in any period to the determination of the review, s42B(10) allows the Corporation to recover any payments made, weekly or otherwise, as a debt or to set off any payments made against a future assessment under s42A, if the requirement imposed by the Corporation is adjudged reasonable. In those circumstances the Corporation is not limited to a set off against a s42A assessment, but the Corporation would be entitled to set off the amount against liabilities of the Corporation under the Act including all the Corporation's liabilities under Division 2 of Part 4.

48. It was put by the appellant that whilst the Corporation had that power, it would not be entitled to exercise that power after the worker had complied with the requirement under s42B(1). It was submitted that once a worker had complied with the requirement then the worker should be entitled to all of the benefits either suspended or unpaid, and if paid, the worker should not be obliged to repay or be liable to a set off. The appellant argued that any other construction of the section would give rise to a draconian penalty upon a worker.

49. I think the plain words of the Act compel the rejection of the appellant's submission. Section 42B(10) provides for a right of action in debt or a right of set off to the Corporation in circumstances where the Review Officer decides in favour of the Corporation. It does not condition that action or set off on a continuing non compliance by the worker. It simply gives the Corporation the right to recover or set off those amounts in relation to the closed period between the date of suspension or determination under s42B(2) and the date of the Review Officer's decision. I do not believe that subsequent compliance by a worker prevents the Corporation exercising its rights under s42B(10). It would follow that compliance subsequent to the Review Officer's decision does not entitle the worker to claim any payments not made to the worker after those payments were suspended or a determination was made not to pay compensation in respect of the period of default. After a Review Officer decides in favour of the Corporation then the worker has no entitlement to weekly payments or a further assessment, if the Corporation so decides, until the worker complies with the requirement.

50. Section 42B(10) contemplates that there will be circumstances where the Corporation may, at its discretion, recover weekly payments paid to the worker during the period the Review Officer is considering the review of the requirements raised by the Corporation under s42B(1). The Corporation is entitled to suspend weekly payments if the worker fails to comply with a requirement under s42B(1). The worker in turn is entitled to seek a review of the reasonableness of the requirements. When the worker applies for the review any weekly payments suspended must be reinstated to their previous level until the matter is first brought before the Review Officer (s42B(4)). During any adjournment the Review Officer can order further payments to be made to the worker.

51. Section 42B(10) clearly contemplates that the Corporation has an entitlement, at the Corporation's discretion, to recover those amounts.

52. The worker to which those provisions apply is a person who has never had the benefit of a s42A assessment. The Act contemplates therefore that any worker receiving payments, who becomes subject to a consideration for an assessment under s42A, will become liable to repay weekly payments in the circumstances which I have mentioned. Subsequent compliance by the worker with the reasonable requirements imposed by the Corporation will not disentitle the Corporation, in the exercise of its discretion, from recovering from that worker those amounts paid pursuant to s42B(4) and (5). Compliance will mean that the Corporation will have to lift the suspension of future payments (s42B(2)).

53. The loss of the entitlement to compensation or the liability to repay compensation under s42B(10) arises by reason of the worker failing to comply with a reasonable requirement which has been imposed by the Corporation to enable the Corporation to make an assessment under s42A. It is, in that sense, the unreasonableness of the worker which causes the worker the loss of benefits under the Act. Even so the section does have very serious consequences for a worker who, it must be acknowledged, is a person whom the Corporation either considers or has determined has a total or partial loss of earning capacity. A totally or partially incapacitated worker would suffer a real hardship by reason of loss or liability to repay compensation.

54. However, that, in my opinion, is Parliament's intention. It has determined that the Corporation needs to have workers medically examined and needs to obtain information. It has provided a procedure whereby a worker will usually only suffer a financial detriment where a worker fails to comply with a reasonable request. To further minimise the possible financial detriment to a worker it has required that the Review Officer deal with the matter as quickly as possible. Moreover it has given the Review Officer a further power to give directions to either or both the Corporation and the worker to expedite any assessment [s42B(9)(b)]. No doubt the section is in this form because it is thought that the Corporation will otherwise not be able, in a timely way, to obtain the information that it needs for assessments under s42A.

55. The scheme of this section is similar to s127 of the Motor VehiclesAct. That section also disentitles a claimant to damages during a period when the claimant fails to submit himself or herself to a medical examination [s127(5)(c)]. Indeed such a failure precludes the claimant from commencing proceedings or, if proceedings have been commenced, continuing the proceedings during the period of default [s127(5)(a)].

56. Similarly a party who is required to submit to a medical examination under R61.02 of the Supreme Court Rules is not entitled to any damages or compensation for any period during which the party refuses to submit himself or herself or obstructs the examination (R61.05).

57. There is nothing unusual about the scheme under the WorkersRehabilitation and Compensation Act.

Facts

58. With those matters in mind I turn to the facts of the appeal. On 26 April 1994 the Corporation advised the appellant that it had decided to make an assessment for his loss of future earning capacity and made an interim assessment for a period of fifty-two weeks from 19 April 1994 to 17 May 1995 and calculated the capital loss at $14,205.26. That interim assessment was varied on 15 June 1994 but in circumstances which are not relevant.

59. On 5 April 1995 the Corporation advised the appellant that it intended to make a further assessment of his loss of earning capacity as a capital loss and advised him at the same time that it may do so by a further interim assessment or final assessment. In particular it wrote: Where an interim assessment is made, future assessments will follow until a final assessment is made." 60. To assist the Corporation in reassessing his case, pursuant to s42B(1)(b), the Corporation then sought information by having the appellant complete a Worker

Questionnaire, Medical Authority and Request for Proof of Earnings. It also asked the worker to arrange an appointment with his medical practitioner to complete a medical questionnaire.

61. That letter warned him that should he fail to provide the information within fifteen days the Corporation may determine not to pay compensation in respect of the period of default. The letter also advised the appellant that if he considered any of the information unreasonable he could apply for a Review Officer to review the requirement.

62. In response to the notice of those requirements the appellant lodged an application for review of that decision on 10 April 1995. On 27 April, 9 May and 22 May 1995, the worker wrote to the Corporation advising his reasons for refusing the request of 5 April 1995. He believed that the request involved an invasion of his privacy and in particular would require him to reveal information he had obtained through processes under the Freedom of InformationAct.

63. On 5 June 1995 a rehabilitation provider, acting on the instruction of WorkCover, provided a full report to the Corporation on the appellant and, in particular, his disabilities.

The Corporation's Determination Of 6 October 1995

64. On 6 October 1995 the Corporation determined that the worker was in default in providing the information requested in April of 1995 and suspended the making of any payments in relation to loss of future earning capacity.

65. The first interim assessment was for the period to 17 May 1995. The Corporation was obliged on 18 May 1995, unless it made a determination not to pay compensation, to make a further assessment. It's failure to either make a determination or to make a further assessment was, in my opinion, a breach of its statutory obligations.

66. In that period between 17 May 1995 and 6 October 1995, in the absence of a determination under s42B(2)(b), the Corporation was under a liability to make an assessment under s42A. It was not entitled simply to let the matter rest without making a determination one way or the other.

67. The failure to either make an assessment under s42A or a determination under s42B(2) means that the Corporation is obliged, in my opinion, to pay the worker the amount of an assessment relevant to that period. For the reasons already mentioned the failure to make an assessment is not a matter for a Review Officer but may be the subject of an order in the nature of mandamus. It follows that the appellant is entitled to an order in the nature of mandamus for at least that period. The Corporation should avoid getting itself in a position whereby the Corporation needs to determine whether or not to pay compensation in respect of a period of default. The Corporation can do that by issuing its requirements in a timely fashion, which will allow a worker to seek a review of those requirements and still be in a position to comply with the requirements within the period of a current assessment. The worker can co-operate in that by either seeking a review immediately upon receipt of the requirements or by complying with the requirements. The Review Officer is obliged to assist the parties by dealing with the proceedings under s42B with as much expedition as is reasonably practicable.

68. On 10 October 1995 the appellant sought a review of the determination by the Corporation of 6 October 1995 in which the Corporation determined not to pay compensation in respect of the period of default.

69. For the reasons already given the application of 10 October 1995 for a review was an inappropriate procedure. The Act precludes a review of the making of an assessment. The Review Officer had no jurisdiction to entertain that application.

The Corporation's Letter Of 5 December 1995

70. Between 10 October 1995 and 3 June 1996 the worker and the Corporation engaged in negotiations in respect of these matters and on 5 December 1995 H I H Winterthur, the Corporation's agent, wrote to the appellant: "... you are no longer in receipt of weekly payments & H I H Winterthur have ceased any further Loss of Earning Capacity assessments, therefore I am unsure as to what there is to discuss." 71. On 27 December 1995 the appellant made a further application for review of the decision that 'H I H Winterthur have ceased to make any further LOEC assessments.'

72. That application for review was also, in my opinion, misconceived. For the reasons already given a Review Officer does not have jurisdiction to review a decision of this kind. The appropriate procedure, if the Corporation or in this case the Corporations agent, H I H Winterthur, refused to make an assessment in circumstances where a previous interim assessment has been made, is to apply to this Court for an order in the nature of mandamus to compel the Corporation to perform its statutory obligations.

Review Officer's Determination

73. On 4 June 1996 the Review Officer determined "to vary the medical authority and to quash the need for a signed statement". By that she decided in favour of the appellant on his application for a review of the reasonableness of the Corporation's requirements under s42B(1), i.e. she determined that the Corporation's requirements were unreasonable and should be quashed.

74. On 11 June 1996 she ruled: "pursuant to section 42B(5), and taking into account all factors identified in section 42B(6), that the corporation/H I H Winterthur immediately make payments to the worker for payments not paid from 18 May 1995 due to adjournments." 75. I think the Review Officer had power under s42B(5) to order the Corporation to make payments under s42B(5). At the time that the applications of 10 October 1995 and 27 December 1995 were made the application of 10 April 1995 for the review of the reasonableness of the Corporation's requirements had not been heard. The reasons for the failure to determine that application until 4 June 1996 are not clear. The Review Officer had an obligation to hear that matter with as much expedition as was reasonably practicable. However as the review had not been completed the appellant was entitled to apply, pursuant to s42B(5), to the Review Officer for a payment during the period of the adjournment. I think the Review Officer probably needed to identify with more precision the payments to which she was referring, but that is a matter of form, not substance. For the reasons already given the Corporation had an obligation independent of s42B(5) to make an assessment to 6 October 1995 because it was not until then that it determined not to pay compensation in respect of the period of default. Her order therefore can only apply to the period from that date until 4 June 1996.

76. The Review Officer further determined, relying on the decision of Vlouhakis v WorkCover Corporation (supra) that she had no jurisdiction to compel the Corporation to make its next interim assessment under s42A. In that respect she was, in my opinion, correct. However she decided that by not making an assessment the Corporation had in fact made a nil assessment and that the quantum of that assessment, i.e. nil, was subject to review under s42A(9)(a). I disagree with that decision. The concept which she introduced is fiction, which is in any event unnecessary in the scheme of the Act.

77. In making that assessment she determined that the Corporation was liable to pay weekly payments from 18 May 1995 to 2 June 1996. I disagree with that determination. The Corporation could never have been liable to make weekly payments for this compensable disability in respect of that period. The worker had ceased to have any entitlement to weekly payments when the first interim assessment was made. There was no liability upon the Corporation to make weekly payments in respect of this compensable disability [s42A(6)].

The Review Officer also determined that the Corporation was liable to make weekly payments to the appellant in relation to his stress claim over the same period. It was argued during the appeal that the appellant would be entitled to weekly payments in respect of that stress claim even though the appellant had received a s42A assessment of total incapacity in respect of the injury of 30 June 1990. I have reached no conclusion on that submission. This Court is in no position to offer any opinion on that matter because there is no evidence before this Court, one way or the other, whether that stress claim is a compensable disability. It is not possible therefore to reach a conclusion as to whether the stress claim gives rise to any entitlement to weekly payments. In any event the matter is not before this Court in this appeal.

78. There were two valid orders made by the Review Officer. The first was in relation to the reasonableness of the Corporation's requirements which she decided adversely to the Corporation. The second was the imprecise but valid order that she made that the Corporation make payments under s42B(5) during the period of the adjournment.

The Appeal To The Workers Compensation Appeal Tribunal

79. The Corporation appealed from the decision of the Review Officer to the Workers Compensation Appeal Tribunal. Deputy President Parsons allowed the appeal. She found correctly, in my opinion, that the applications for review of 10 October 1995 and 27 December 1995 were misconceived. I need say no more about those reviews. She found again correctly, in my opinion, that the only reviewable decision before the Review Officer was that relating to the original request under s42B(1). In respect of that decision she disagreed with the Review Officer. She said: "The basis upon which the Review Officer decided that the information was unreasonable was not warranted. Although there may have been medical certificates and reports on the Corporation's file it was appropriate that the Corporation have current details as to the worker's medical condition at the time specifically in contemplation of the making of a LOEC assessment. Moreover it was not unreasonable that the worker provide a specific declaration as to his earnings for the preceding twelve months. He was the only person in possession of those details. The information sought was relevant to the amount of any LOEC assessment and could reasonably have influenced a decision whether the assessment should be made on a final or interim basis." 80. She also decided that s42B(5) had no application to workers who had previously received an interim assessment. She was of the opinion that 'payments' in s42B(5) meant weekly payments and were therefore only capable of being ordered in favour of a person who had not ceased to be entitled to weekly payments, i.e. a worker who had not previously received an assessment under s42A.

81. She therefore ordered: "I therefore uphold the appeal, overturn the Review Officer's decision on the first application for review and confirm the Corporation's request for the information of April 1995. I also overturn the Review Officer's decision on that application for review that the worker is entitled to weekly payments for the period of the adjournment from May 1995 to June 1996. The worker's remedy in relation to the unpaid LOEC period remains elsewhere." 82. It is from that decision which the appellant appeals, his appeal being limited to questions of law.

83. The decision of the learned Deputy President allowing the appeal to set aside the order for payments to the appellant during the period 18 May 1995 to 3 June 1996 is clearly a matter of law. That is so because it involves a question of the construction of the Act. I respectfully disagree, for the reasons already given, with the construction put upon that section by the learned Deputy President. In my opinion the Review Officer did have power to order the Corporation to make payments to the appellant, at least during the period 7 October 1995 to 3 June 1996. For the reasons already given the Corporation has an obligation to make an assessment for the period 18 May 1995 to 6 October 1996 because it was not until 6 October 1995 that the Corporation determined not to pay compensation in the period of default. The different liabilities for the different periods are important for reasons I will mention later. It follows that the appeal to this Court ought to be allowed at least to that extent.

84. The other matter decided by the learned Deputy President of which the appellant complains, is the decision that the requirements of the Corporation were reasonable.

85. The question whether a matter is one of law or one of fact can often be difficult to determine. In this case the construction of s42B(1) and the conclusion that the Corporation's requirements must be reasonable is a matter of law. But the appellant does not complain about the learned Deputy President's construction of the section. This ground of appeal goes to whether the facts as found disclose that the requirements are reasonable. It was not a question of whether the Corporation was entitled to require the appellant to submit to a medical examination or provide information. The question for determination was whether the requirements imposed by the Corporation were reasonable.

86. However, it is not necessary to determine whether that gives rise to a question of law or fact because in the end, from the parties point of view in this appeal it does not matter. That is because I agree, with respect, with the decision of the learned Deputy President on this matter. She found the Review Officer's determination that the requirements sought were unreasonable to be wrong. The information sought was directly relevant to an assessment of loss of earning capacity under s42A.

87. The Review Officer found that the Corporation was provided with other information from the appellant and from other sources which ought to have been sufficient to satisfy the Corporation. With respect to the Review Officer that is not to the point. The Corporation is entitled to obtain information from any source who will co-operate with it in providing information. However the fact that the Corporation might obtain information from an independent source does not disentitle the Corporation from exercising its rights under s42B(1). Indeed in most cases the Corporation will have received medical reports from medical practitioners who have either treated the worker or have provided reports on behalf of the worker. The receipt of those reports by the Corporation could not be said to disentitle the Corporation from stipulating that a worker submit to an examination by another medical expert nominated by the Corporation [s42B(1)(a)].

88. So also the Corporation would not necessarily be acting outside [s42B(1)(b)] if it required a worker to submit information relating to the worker's earning capacity when that information was otherwise available to the Corporation. It would not necessarily be unreasonable for the Corporation to use the section to have a worker effectively verify information.

89. In the circumstances of this case I agree with the learned Deputy President that the requirements of the Corporation were not unreasonable. I would therefore dismiss that ground of appeal.

Conclusion

90. In these circumstances the Court ought to allow the appeal and make the order in the nature of mandamus to the extent mentioned.

91. That will mean, in effect, that the appellant will be entitled to the payments over the whole of the period from 18 May 1995 to 3 June 1996. However in respect of the period between 7 October 1995 and 3 June 1996 the Corporation has a right, in the exercise of its discretion and, subject to any regulations, to recover the amount of the assessment from the appellant as a debt or to set off the amount of the assessment against any liabilities of the Corporation to make payments under the Act. That is a matter for the Corporation.

92. I propose the following orders. (1) Appeal allowed.

2. The order of the Workers Compensation Appeal Tribunal allowing the appeal from the Review Officer setting aside an order that the Corporation make payments to the appellant pursuant to s42B(5) be set aside.

3. The matter to be remitted to the Review Officer for the assessment of the payments for the period 7 October 1995 to 3 June 1996.

4. This Court orders, upon the application of the worker, that the Corporation make an interim assessment of the appellant's loss of earning capacity for the period 18 May 1995 to 6 October 1995.