Royal Perth Hospital v Morris
[2012] WADC 82
•11 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
LOCATION: PERTH
CITATION: ROYAL PERTH HOSPITAL -v- MORRIS [2012] WADC 82
CORAM: COMMISSIONER GETHING
HEARD: 11 MAY 2012
DELIVERED : 11 JUNE 2012
FILE NO/S: APP 4 of 2012
BETWEEN: ROYAL PERTH HOSPITAL
Appellant
AND
HILARY ELAINE MORRIS
Respondent
Catchwords:
Work Cover appeal - Recurrent injury - Partial incapacity - Onus of proof
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 57A, s 62, s 178
Workers' Compensation and Injury Management Regulations 1982 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr G Porter
Respondent: Mr M Lourey
Solicitors:
Appellant: Talbot Olivier
Respondent: Chapmans
Case(s) referred to in judgment(s):
Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20
Attorney-General (WA) v Schoombee [2012] WASCA 29
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Aziz v Tempo Services Ltd [2010] WASCA 39
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Combi v West Australian Meat Marketing Corporation Ltd Unreported CM‑37/03, (Hogan PM) 24 September 2003
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v R [1936] HCA 40; (1936) 55 CLR 499
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kioa v West; sub nom Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81;(1985) 159 CLR 550
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Liu v Inghams Enterprises Pty Ltd [2007] WASCA 134
Mayne Nickless Ltd v Mayne (Unreported, WASC, Library No 960736, 16 December 1996),
McGinnis v Westralian Forest Industries Pty Ltd (Unreported, CM-138/00 (Cockram PG) 9 February 2001
McGowan v Castrum Pty Ltd [2005] WASCA 198
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
MTI v SUL [No 2] [2010] WASCA 58
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97
Pratt v Metro Meat International Ltd (Unreported, CM-65/03 (Packington J R) 16 October 2003)
Ross v Corruption & Crime Commission [2008] WACC C15‑2008
Sinclair v Bickford [2011] WACC C5‑2011
Sotico Pty Ltd v Wilson [2007] WASCA 112
Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Westralian Farmers Co-operative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989)
COMMISSIONER GETHING: By appeal notice dated 18 January 2012, the appellant appealed from a decision of Arbitrator McCahon on 22 December 2011. The arbitrator ordered the payment of weekly payments for a partial incapacity of 10 hours per fortnight in relation to an injury sustained on 22 January 2009, the weekly payments to commence from 14 March 2011. The arbitrator accepted the respondent's claim that she suffered a recurrence of her initial injury.
The appeal was commenced within the time allowed in Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) s 247(4). The appeal notice raised two issues: the procedure that a worker must follow on a recurrence of an injury in order to obtain an order for weekly payments and the onus of proof in relation to issues of partial incapacity.
The respondent filed a notice of respondent's intention dated 9 February 2012. In it the respondent stated that she would seek to uphold the decision under appeal on the grounds relied on by the arbitrator, and would not seek to reply on other grounds, nor vary the decision.
The matter was listed for directions before a registrar on 21 February 2012. The registrar listed the issue of leave to appeal and the substantive appeal for hearing before a judge.
There was no application for leave to adduce fresh or additional evidence, so the appeal proceeded on the basis of the evidence before the arbitrator: WCIMA s 247(6).
Background facts
The respondent is a registered nurse employed by Royal Perth Hospital. At the time of her initial accident in January 2009 she was working standard hours of 50 hours per fortnight plus additional shifts up to 70 hours per fortnight.
On 22 January 2009 the respondent was injured whilst assisting a patient use a commode. She tripped over the back leg of the commode chair, lost her balance and hit the edge of a door. She sustained cuts and abrasions to the left side of her face, as well as injuries to her neck, right shoulder, elbow, thumb and shins. It left her with persistent pain and muscle spasms in the cervical spine musculature radiating to the shoulders and arms.
The respondent made a claim for worker's compensation on 22 January 2009. The first worker's compensation medical certificate was provided by Dr Mahesh Kandanarachchi from Royal Perth Hospital on 22 January 2009.
The respondent appears to have returned to work on or about 3 February 2009. Liability was accepted in respect of her claim on 9 February 2009.
On 29 May 2009, the respondent prepared and signed a document entitled 'RiskCover Recurrence of Disability Form', which on its face appears to have been received by the appellant on 2 June 2009. In this form, the respondent stated that her pain was ongoing since the original injury, but had increased since around 24 February 2009. The date of the further incapacity was 21 May 2009, and she had been off work from 22 May 2009. She also completed a document entitled 'Staff Accident/Incident Report' for the recurrence on 21 May 2009.
By letter dated 10 June 2009, the appellant's insurer gave notice pursuant to WCIMA s 57B(2) that it accepted liability for weekly payments and other statutory benefits in relation to the recurrence commencing 22 May 2009.
The respondent recommenced work on a rehabilitation program in August 2009 where she was put on a restricted duties regime and increased activities according to her abilities at the time. She returned to her pre‑disability duties in May 2010. In a witness statement filed with her claim, the respondent stated that she had been able to cope with the work, but had increased pain depending on the severity of the workload. She continued:
As time has gone by, I have found that by the end of a shift my neck is stiff and my shoulders sore, and at this stage need to take medication. After discussion with my GP and both my current therapists, on March 14th, I commenced on reduced hours (40/fortnight) so that I may continue working.
On 20 January 2011, the respondent wrote to her line manager, Ms Tan, advising Ms Tan that she wished to decrease her hours from 50 hours per fortnight to 40 hours per fortnight. She stated 'I am willing to work an extra night occasionally, but it would be at my discretion and my health at the time'. The respondent gave evidence in the arbitration hearing that she had discussed the matter with Ms Tan prior to sending the letter and had indicated to her that she was not coping and that she was struggling with her duties as a result of the pain she was experiencing from her injuries. Ms Tan did not give evidence at the arbitration.
In a progress medical certificate (PMC) dated 3 February 2011, the respondent's General Practitioner Dr Crawford stated:
Soft tissue injuries, (R) shoulder, neck, (L) cheek
Getting quite a deal of stiffness and tingling down arms due to increased work load – continuing
Requires regular massage therapy weekly, (which she feels keeps her working) and aroma therapy weekly
Has reduced her hours from 50 hours a fortnight to 40 due to pain from 14/03/2011
Seen by Dr Silbert – 15% permanent disability in the neck and shoulder
Pain has increased somewhat in past two weeks…..'Just coping'
…Fit to return to pre-disability duties, but requires further treatment.
On 11 February 2011 the respondent's legal representatives wrote to the appellant's insurer in the following terms:
Our client instructs us, further to our recent letters, that she is also reducing her hours as a result of a work injury, on or about 14 March 2011.
Can you please ensure that partial incapacity payments are made to our client to top her up for the hours she is losing, from on or about 14 March 2011.
In the PMC dated 30 March 2011, the respondent was certified: 'Fit to return to pre‑disability duties, but required further treatment (keeping to 40 hours per fortnight)'. Dr Crawford also commented that: 'Getting quite a deal of stiffness and tingling down arms due to increased work load … Has ongoing pain because of workload'.
The appellant, whilst accepting liability, maintains that the respondent has the capacity to work 50 hours per fortnight as she did prior to the accident and that she voluntarily chose to reduce her hours to 40 hours per fortnight.
On 4 August 2011 the respondent lodged an Application to Resolve a Dispute – pt XI seeking weekly payments from 14 March 2011.
Regime for the payment of weekly compensation
If an injury occurs to a worker, his or her employer is, subject to the provisions of WCIMA, liable to pay compensation in accordance with sch 1: WCIMA s 18. The liability commences from the date of the incapacity resulting from the injury: WCIMA s 21 (subject to sch 1 cl 19 which is not relevant for present purposes). The term 'injury' is defined in WCIMA s 5, though the only aspect relevant for present purposes is that it includes a recurrence or aggravation of a pre‑existing disease.
An injured worker may claim compensation by way of weekly payments for a total or partial incapacity. The amount of compensation payable it determined by WCIMA sch 1 cl 7 which provides:
7. Total or partial incapacity
(1)Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
(2)Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
(3)An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
(4)Nothing in subclause (3) affects the liability of an employer for, and the entitlement of a worker to, expenses as are provided for in clauses 9, 17, 18, 18A, and 19 but subject to the limitations on those expenses as provided in clauses 17(1) and 18A(1CA) and (1C).
(5)Unless otherwise authorised by WorkCover WA, compensation shall be paid by the employer to the worker at the employer's usual place of payment of wages on the employer's usual pay days or, at the request of the worker shall be sent by prepaid post to the worker's address.
(6)A worker when fulfilling any requirement of an arbitrator made under section 156B, is deemed for the purposes of this clause to be totally incapacitated.
The authorities as to what constitutes an incapacity were considered by Commissioner McCann in Ross v Corruption & Crime Commission [2008] WACC C15‑2008. I respectfully adopt his Honour's comments [19] - [20]:
An injury results in incapacity for work if it removes or reduces the ability of the worker to earn an income in some suitable employment. The worker must prove a physical incapacity for doing work in the labour market in which that person was working before suffering the injury, or in which the worker might reasonably be expected to work (ie, which is 'reasonably accessible' to the worker). See: Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 178-9 per Mason, Wilson Deane and Dawson JJ approving and following Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431; Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585 and Ball v William Hunt & Sons Pty Ltd [1912] AC 496; and Board of Management of Sir Charles Gairdner Hospital v Coleman (unreported), FCt of SCt of WA, delivered 8 May 1996, Library No. 960241.
It has long been held that it is relevant to take into account the background of the worker, his or her physical characteristics, age, pre‑existing physical disabilities, employment background, skills, expertise, training and education. Kotua v Leighton Contractors Pty Ltd, CM‑45/02, Assured Smash Repairs v Noppers, CM-229/02 and Thygesen v Primo Constructions, CM-110/02 provide recent examples of this approach. The terms of the worker's contract of employment may be a relevant consideration by providing evidence of the factors I have just mentioned, or of restrictions upon the worker engaging in alternative employment (which the employer would need to address in good faith in the context of facilitating the worker's return to work). Amongst other things, it might be also necessary to have regard to restraint of trade, intellectual property and confidentiality provisions and such like, and whether or not the same were enforceable or would need to be enforced by the employer. However, it is not the case that residual earning capacity must be limited to the employment options which are available to the worker under the contract, or to which he or she is entitled. The issue which must be addressed is the worker's physical capacity for work in a market for his or her labour that it is reasonably accessible having regard to factors personal to the worker. It must also be remembered at all times that a partially incapacitated worker bears the obligation to take reasonable measures to mitigate his or her loss …. Accordingly, it is not open to a worker to unreasonably insist on the observance of contractual provisions which stand in the way of his or her return to some suitable employment and to receive weekly payments of compensation under the Act on the basis that there is no suitable work available. The Act requires all parties to adopt a reasonable common -sensed, practicable and good faith approach to the worker's return to work. Occasionally, the need to give effect to a contractual restriction of some kind will be unavoidable, but I apprehend that it would be an unusual case.
An injured worker who wishes to make a claim for compensation by way of weekly payments for total or partial incapacity must comply with the claims procedure set out in WCIMA s 57A or s 57B.
There was a divergence of views between the parties on whether WCIMA s 57A or s 57B is the relevant provision in the present matter. The specific issue is which section is appropriate where RiskCover is acting for a State Government employer. The appellant, who acts for RiskCover, proceeded on the basis that RiskCover was an insurer, and thus WCIMA s 57A applies. The respondent was of the view that RiskCover was a self-insurer such that WCIMA s 57B applies. As the matter was not fully argued, and I have not been given any materials on the governance of RiskCover, it is not appropriate for me to express a concluded view. I proceed on the basis that WCIMA s 57A applies, though as WCIMA s 57B is in relevantly identical terms, the determination of the status of RiskCover does not affect the outcome of the appeal.
In McGowan v Castrum Pty Ltd [2005] WASCA 198 [4] Wheeler JA (with whom Steytler P and Pullin JA agreed) stated that the purpose of WCIMA s 57A 'in broad terms appears to be to ensure that there is speedy processing of workers' compensation claims'. In Sinclair v Bickford [2011] WACC C5‑2011, Commissioner McCann stated of WCIMA s 57A[37]:
… the primary purpose of the giving of notices contemplated by WCIMA s 57A(3) (such as the form 3A) is to create certainty and expedition in respect of the handling of the worker's claim. It is irrelevant for that purpose what kind of notice is given to the worker provided that one of the three forms of notice contemplated by subs(3) is given. Once that is done the worker has the right to prove his entitlement pursuant to s 58(1) provided that 17 days have elapsed since the making of a claim.
It provides:
57AClaims procedure where employer insured
(1)This section applies where —
(a)a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba)the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b)the worker suffering the injury serves on the employer a certificate signed by a medical practitioner —
(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
(2A)In the circumstances mentioned in subsection (1), before the expiration of 5 full working days the employer must claim under and in accordance with his or her policy of insurance in respect of liability to pay the compensation claimed.
Penalty: a fine of $1 000.
(2)Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 5 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 5 working days for which weekly payments are claimed by the worker.
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
(4)Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine‑readable form so specified, the information contained in the notification.
Penalty: $1 000.
(5)Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply for a determination under subsection (6).
(6)On an application under subsection (5) an arbitrator may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined but without affecting his entitlement under subsection (5) in respect of the period before that determination.
(7)An employer shall make the first of the weekly payments not later than 14 days after —
(a)he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; or
(b)on an application made under section 58, an arbitrator has ordered the commencement of weekly payments under this subsection,
and subsequent weekly payments shall be made on the employer's usual pay days.
(8A)An employer who fails to make a weekly payment by the due date under subsection (7) commits an offence.
Penalty for each weekly payment not made when due: a fine of $2 000.
(8)An employer who having received a payment from an insurer in respect of the employer's liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.
Penalty: $2 000.
There is an issue in the present appeal as to whether the notice the respondent gave complied with both WCIMA s57A and s 178(1)(b). The latter section provides:
178. Notice of injury, and claim for compensation, requirements for
(1)Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless —
(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,
but —
(c)the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and
(d)the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.
(2A)For the purposes of showing that the employer has not been prejudiced in defending the proceedings for subsection (1)(d), the period from the occurrence of the injury, or from the time of death, to the time the claim is made is to be taken into account.
(2)Notice in respect of an injury under this Act is to state —
(a)the name and address of the person injured; and
(b)in ordinary language the cause of the injury; and
(c)the date and place at which the injury occurred,
and is to include such other information, if any, as may be prescribed by the regulations.
WCIMA s 179 sets out requirements for service of the notice. Relevantly, it provides:
179. Notice of injury, service of
(1)Notice in respect of an injury under this Act is to be served on the employer, or, if there is more than one employer, upon one of such employers.
(2)The notice may be served by delivering it at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served.
…
WCIMA s 57BA sets out the requirements for the notices pursuant to s 57A. The regulations prescribe that a claim made by a worker in accordance with WCIMA s 178(1)(b) must be made in the form of Appendix 1, Form 2B: Workers' Compensation and Injury Management Regulations 1982 (WA) (WCIMR) r 6AA. The form of the First Medical Certificate for the purposes of WCIMA s 57A(1)(b)(i) is prescribed to be Appendix 1, Form 3: WCIMR r 6A(1). In addition to this, the worker must complete a consent authority: WCIMR r 6A(2). There is no prescribed form for the certificate in WCIMA s 57A(1)(b)(ii) where a worker is unfit for work because of a recurrence of an injury.
Where there is a dispute pursuant to WCIMA s 57A, the worker may apply to an arbitrator for a determination of the employer's liability to make weekly payments pursuant to WCIMA s 58(1). That section provides, so far as is relevant:
58. Liability for weekly payments, arbitrator may determine
(1)Where, in the circumstances mentioned in section 57A(1) —
(a)a period of 19 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or
(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the insurer —
(i)under section 57A(3)(b) or 57A(3a)(b), that liability is disputed; or
(ii)under section 57A(3)(c), that a decision as to liability is not able to be made within the time allowed,
an arbitrator may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.
…
(2a)Where under section 57A(3a) or 57B(2a) a claim by a worker is deemed to be disputed, the Director may order the employer to make an application for an arbitrator to hear and determine the question of liability to make the weekly payments claimed.
(3)An employer may, in the circumstances mentioned in section 57A(1) or section 57B(1), make application for an arbitrator to hear and determine the question of liability to make the weekly payments claimed, and an arbitrator may hear and determine the matter.
[(4)deleted]
(5)On a hearing under subsection (1), (2), (2a) or (3) the arbitrator is to satisfy himself as to all the evidence before him and —
(a)if the arbitrator considers that the evidence is satisfactory to establish liability to make weekly payments, may —
(i)make an order that weekly payments including arrears to the date of the hearing shall be paid out of moneys standing to the credit of the General Account and that the employer shall forthwith pay to WorkCover WA for the General Account the amount of such payments together with an additional 10% of that amount; or
(ii)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator sees fit;
or
(b)if the arbitrator considers that the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as the arbitrator sees fit.
(6)The fact that an application has been dismissed under subsection (5) shall not be taken into account by an arbitrator in any other proceedings under this Act.
WCIMA s 60(1) provides that 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'. Where an employer has given notice of its intention to discontinue or reduce weekly payments without an order, the worker may apply for an order of an arbitrator that the weekly payments not be discontinued or reduced: WCIMA s 61(3). Subject to some exceptions that are not relevant for present purposes, weekly payments are not to be discontinued or reduced otherwise than in accordance with WCIMA: WCIMA s 61(5). WCIMA s 62 then provides a broad power to review weekly payments: see par [68].
The term 'arbitrator' means 'an officer of WorkCover WA designated or engaged under section 182ZQ as an arbitrator': WCIMA s 5(1). WCIMA s 182ZQ(1) provides for the appointment of persons designated by arbitrators by the CEO of WorkCover. An arbitrator so designated must be a legal practitioner: WCIMA s 182ZQ(3). 'Arbitrators are not subject to the management or direction of the chief executive officer or the Registrar as to any decision to be made, or discretion to be exercised, in relation to a particular dispute': WCIMA s 182ZQ(5).
The jurisdiction of an arbitrator stems from WCIMA s 182ZT, which provides:
182ZT. Application for arbitration
If a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with this Act and the arbitration rules for determination of the dispute by arbitration.
The term 'dispute' is defined in WCIMA s 176 for the purposes of pt XI to mean:
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(b)a dispute in connection with an obligation imposed under Part IX;
(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;
(d)any other matter of a kind prescribed by the regulations.
Decision of Arbitrator McCahon
The arbitrator identified two issues for determination:
(a)whether the respondent had made a proper claim for compensation; and
(b)whether she had a partial incapacity for work as a result of the injury sustained by her in the course of her employment with the respondent.
There was no dispute before the arbitrator, nor before me, that the respondent suffered a personal injury by accident on 22 January 2009, whilst at work and engaged in her duties as a registered nurse.
The arbitrator stated that it was her impression from the respondent's evidence 'that she felt she had given her employer sufficient notice of her intention to reduce her hours and her reasons for doing so and that she had obtained, as required, the relevant certification and provided that to her employer' [26].
In relation to the first issue, the arbitrator found that the respondent complied with WCIMA s 57A and that she had jurisdiction pursuant to WCIMA s 58 to hear and determine the dispute. The arbitrator was of the view that the following documents constituted sufficient compliance with WCIMA s 57A:
(a)the respondent's letter to Ms Tan;
(b)Dr Crawford's PMCs of 3 February and 30 March 2011; and
(c)the letter from the respondent's solicitors to the appellant's insurer dated 11 February 2011.
The arbitrator observed that the standard of proof to which she had to be satisfied was the balance of probabilities, citing, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
The arbitrator did not accept the submission that the respondent had reduced her hours voluntarily. She was of the view that the certification of Dr Crawford in the PMC of 3 February 2011 and the letter to Ms Tan supported the respondent's evidence that the reason why she reduced her hours was because of increasing symptoms.
In cross‑examination, counsel for the appellant tested whether the respondent was incapacitated for all duties, or just nursing duties. This aspect of the cross‑examination was summarised by the arbitrator as follows [22], [26]:
It was also put to Mrs Morris that there was no reason why she could not do a further 10 hours per fortnight somewhere else at the hospital to ensure that she worked her full complement of hours to which Mrs Morris agreed. She also agreed that she was no incapacitated for clerical and telephonist type duties and when she wrote the letter dated 20 January 2011, she had no been to her general practitioner about any aggravation of her injuries. It was put to her that she had simply voluntarily decided to reduce her hours. Mrs Morris did not agreed with that statement. Her evidence was that she was advised to reduce her hours by her general practitioner and that she had wanted to give her employer as much notice as possible of her intention to do so.
…
Her evidence also was that she was not at any time asked by her employer to make herself available to do other alternate duties, such as clerical work. She indicated that whilst she was aware that if she 'was sick and had to take sick nights off' as a result of her injuries, there was a form that she needed to complete in that regard but it was clear from the manner in which she gave her evidence that she did not think it necessary in the circumstances to complete a formal recurrence claim form. It was my impression from Mrs Morris' evidence that she felt that she had given her employer sufficient notice of her intention to reduce her hours and her reasons for doing so and that she had obtained, as required, the relevant certification and provided that to her employer. It is my view that these circumstances, and in particular the progress medical certificate dated 3 February 2011, establish that this was a result of an increase in pain caused by her injuries.
There was conflicting medical evidence as to the extent of the respondent's incapacity. Dr Crawford's evidence was that the respondent was capable of performing her duties as a registered nurse, but on the reduced hours.
The appellant called Dr Joel Silbert, an occupational physician. He had seen the respondent on three occasions by the time of the hearing, and had produced reports dated 10 September 2009, 26 November 2010, 12 April 2011 and 23 September 2011. In the 26 November 2010 report, Dr Silbert found the respondent to be working 50 hours a week and undertaking all duties required of her. He did note a restriction in her recreational activities. He considered the respondent to have made a 'partial recovery' and 'to have achieved a plateau of her recovery'.
In his report of 12 April 2011, Dr Silbert records the respondent as reporting a further deterioration of her cervical symptoms, increased symptoms and intolerance with undertaking her employed duties, as well as housework and other activities. He concludes that there 'was no evidence of any medical basis or requirement for Mrs Morris to reduce her workplace attendance from her fully employed 25 hours of work per week other than that of her own volition'.
In the end, the arbitrator preferred to opinion of Dr Crawford over that of Dr Silbert on the basis that the former was the treating practitioner who had seen the respondent on numerous occasions, whereas the latter saw her three times and only for medio‑legal assessment. The arbitrator found that the respondent was incapacitated to the extent that she is unable to complete her full complement of 50 hours per fortnight with the appellant and that in the circumstances she is fit only to work 40 hours per fortnight as certified by Dr Crawford.
The arbitrator's findings in relation to the claim for partial incapacity are as follows [51] - [54]:
It is well established law that where a worker is employed at the time of hearing for weekly payments and produces evidence of their earnings, then this is prima facie evidence of earnings from suitable employment. In that event the evidentiary onus of showing that the worker has a greater earning capacity shifts to the respondent employer. (See Combi v West Australian Meat Market Corporation Ltd (CM (WA), 37/03, 24 September 2003, unreported) and Pratt v Metro Meat International Ltd (CM (WA), 65/03, 16 October 2003, unreported).
The cases of Aitken v Goodyear Tire and Rubber Company (AUST) Limited (1945) 46 SRMSW 20 and Novello v Zinc Corporation Limited (1988) 14 NSWLR 25 (and the authorities referred to therein) are authority for the proposition that the criteria 'earning' or 'able to earn' (as referred to in Schedule 1) are alternatives and that a partially incapacitated worker who provides evidence of earnings establishes a prima facie case that he 'is earning in suitable employment'. It is for the employer to then refute that prima facie evidence by demonstrating that the worker's actual earnings are not the proper test due to the worker being able to earn more in another occupation or position.
In this matter I have accepted the evidence of Mrs Morris that she suffered an increase in her symptoms which led her to seek medical advice and reduce her hours of work from 50 to 40 hours per fortnight from 14 March 2011. On her own evidence she has established that, but for that partial incapacity, she would have continued to earn wages equivalent to 50 hours per fortnight as a registered nurse. The respondent did not challenge the proposition that the pre‑accident earnings of Mrs Morris equated to 50 hours per fortnight as a registered nurse. The thrust of the respondent's case was that she had the capacity, based on the medical evidence of Dr Silbert, to work 50 hours per fortnight and I have made findings inconsistent with that submission. The respondent did not produce any evidence to the effect that Mrs Morris could earn more in any other occupation or position. The respondent led limited evidence from Mrs Morris to the effect that she could undertake clerical, telephonist or similar duties with the respondent but led no medical evidence that established she had the capacity to do so, nor to what extent. I have found that Mrs Morris has made a proper claim for a recurrence of her injury and the respondent did not produce any evidence that alternate duties were offered to Mrs Morris or that they were appropriate to available.
In the circumstances I find that Mrs Morris has established a prima facie case as to her earnings in suitable employment from 14 March 2011, and that prima facie case has become conclusive in the absence of relevant rebuttal evidence from the respondent.
On this basis, the respondent's claim for weekly payments was successful.
Appeal framework
The present appeal is pursuant to WICMA s 247, which provides:
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.
…
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(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.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave 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 present appeal is one in which an amount of compensation is at issue. There was no evidence before me as to the value of 10 hours per fortnight for a registered nurse. However, given that the order was for ongoing weekly payments, I am satisfied that the amount in issue is in excess of $5,000.
The appellant must also establish that the appeal 'involves' a question of law before the jurisdiction to grant leave to appeal is enlivened. The issue of the process which a worker has to follow in order to make a claim in relation to a recurrence of an injury involves the interpretation of various provisions of the WCIMA beginning with s 57A. The issue of the onus of proof is an issue of correct legal principle for an arbitrator to apply in making a finding in relation to the degree of lost earning capacity. Each is a question of law. A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [1], [15], [19]. I am satisfied that the appeal involves these two questions of law.
There is no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave: BHP Billiton [20]; Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97 [16]. In my view it is in the interests of justice that there be a grant of leave, and I grant leave to appeal.
By WCIMA s 247(5) the appeal is a 'review' as opposed to, say, the criminal injuries compensation jurisdiction in which the court is to decide the application 'afresh': Criminal Injuries Compensation Act 2003 (WA) s 56(1).
As to the scope of the 'review', if some question of law is 'involved', the whole decision appealed from is open to review, and not merely the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18], [30], [31]. The review is not a hearing de novo: Pacific Industrial [20], [30], [31]. Once a question of law is identified, and the jurisdiction enlivened, the review is not limited to pure questions of law: Pacific Industrial [18], [30], [31]. As Wheeler JA observed in Pacific Industrial, the correction of errors of law was the commissioner's (and is now the courts) 'principal, but not only, task': [25], [30], [31].
Within the constraints marked out by the nature of the appellate process, the review in WCIMA s 247 is a 'real review': Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25]; Aziz v Tempo Services Ltd [2010] WASCA 39 [40], [42]; Sotico Pty Ltd v Wilson [2007] WASCA 112 [46]; Pacific Industrial [22] – [24], [30], [31]. The appellant must show some 'proper basis' within an appellate process for disturbing the decision under challenge, such as an error of 'fact, law or logic': Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, 586; Pacific Industrial [26], [30], [31]. It is not sufficient that the court undertaking the review would have come to a different conclusion on the facts to that of the arbitrator: House v R [1936] HCA 40; (1936) 55 CLR 499, 504 - 505; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519. Unless the 'review' persuades the court that the arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand: Boston Clothing, 586; Pacific Industrial [20] - [26], [30], [31].
Ground 1
Ground 1 – Appeal notice
Ground 1 is that:
1.The arbitrator erred in law in deciding the worker had compiled [sic] with:
1.1 s 178(1)(b)
1.2 s 179; and
1.3 s 57(B)(1)(a) and (b) of the WICMA
The issue is more broadly stated as being: what is the correct procedure for a worker to follow in order to make a claim for weekly payments where the injury arises out of a recurrence of an injury previously sustained in the workplace. It is convenient to commence the analysis with the respondent's submissions.
Respondent's submissions
The respondent's application specified that she sought orders pursuant to WCIMA s 18, s 21 and sch 1 (cl 7 and cl 11).
The appellant's liability was dependant on two factual issues being resolved in favour of the respondent:
(a)that her injury arose out of or in the course of her employment so as to be within the definition of injury in WCIMA s 5; and
(b)the injury caused the incapacity in issue, namely the reduction in the ability to work from 50 hours per fortnight to 40 hours per fortnight.
As there was a dispute in relation to these factual issues, the respondent was entitled to have the matter referred to an arbitrator. As the arbitrator determined both factual matters in her favour, her entitlement to compensation was established.
The respondent accepted that before commencing proceedings for recovery of compensation under WCIMA, she had to comply with WCIMA s 178 and s 179. However, she submitted that it is only necessary for her to comply with WCIMA s 178(1)(b) and WCIMA s 179 once in relation to her injury. This she did on or about 22 January 2009 providing to the appellant a Workers' Compensation Claim Form 2B, together with a First Medical Certificate. There did not have to be repeat compliance in relation to a recurrence of the injury for which there had been initial compliance.
The respondent's secondary submission was that, for the reasons outlined by the arbitrator, there had, in any event, been compliance with WCIMA s 57A in relation to the recurrence the subject of the claim before the arbitrator.
Ground 1 – Appellant's submissions
The appellant submitted that the documents relied on by the respondent did not meet the notice requirements of WCIMA s 178(1)(b). In particular, they did not identify:
(a)the date and place in which the recurrence or aggravation occurred;
(b)the cause of the recurrence or aggravation; and
(c)the date from which the recurrence or aggravation prevented the worker from working the additional 10 hours per fortnight.
As an alternative, the appellant submitted that, if compensation payments were to be made to the respondent, then they should have been made from the date on which the worker served her WCIMA pt XI application on the appellant (3 August 2011), on the basis that it was on this date that the relevant information required under the notice provisions of WCIMA were complied with.
In response to the respondent's submission, the appellant submitted that an arbitrator has no general dispute resolution power. Rather, the appellant submitted that there are four sections which provide an arbitrator with power to resolve a dispute in relation to the payment of compensation by weekly payments:
(a)WCIMA s 58, in relation to liability for weekly payments;
(b)WCIMA s 60, for an order reducing or discontinuing weekly payments on the application for the employer;
(c)WCIMA s 61, for an order where the employer has given notice of its intention to reduce or discontinue weekly payments, on the application of the worker; and
(d)WCIMA s 62, for the review of weekly payments on the application of either the employer or the worker.
As the present application did not fall within any of these sections, the arbitrator did not have the power to hear it.
Ground 1 – Summary of issues for determination
There are five issues for determination
(a)whether the arbitrator's power in relation to disputes relating to weekly payments is limited to disputes falling within WCIMA s 58, s 60, s 61 and s 62;
(b)whether the present dispute is within WCIMA s 62;
(c)whether the respondent was required to comply with the notice provisions in WCIMA s 57A(1) and s 178;
(d)whether the respondent did in fact comply with the notice provisions in WCIMA s 57A(1) and s 178; and
(e)if the answer to (d) is no, whether the discretion in WCIMA s 178(1)(c) is able to be used.
Ground 1 - Disputes which may be the subject of a decision by an arbitrator
As I have set out above, four sections expressly empower an arbitrator to resolve disputes relating to the payment of weekly compensation: WCIMA s 58, s 60, s 61 and s 62. There are some other sections which provide that an application may be made to an arbitrator in relation to weekly payments, but they are not relevant for present purposes: WCIMA s 57A(5), s 57B(4), s 59(10) . The relevant issue then is whether the existence of the four provisions which expressly provide for determination by an arbitrator (within par (c) of the definition of a 'dispute' in WCIMA s 176) by necessary implication excludes the bringing of a dispute in relation an issue that could have been determined using one of the four provisions (thereby falling within the definition of par (a) of the definition of a 'dispute'). In my view, it does. As Parliament has set four pathways by which a dispute as to the payment of compensation by way of weekly payments can be brought before an arbitrator, if a dispute can be brought within one of those pathways, it must be brought within one of those pathways.
Ground 1 – Is the present dispute within WCIMA s 62?
The next issue that arises is whether the plaintiff can rely on her initial compliance with WCIMA s 57A in her current application. This firstly depends on whether the arbitrator still has jurisdiction in relation to this application pursuant to WCIMA s 62, notwithstanding that the previous payment of weekly payments has discontinued.
The finalisation of a claim pursuant to s 57A is dealt with in WCIMA s 62 in the following terms:
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 issue of interpretation that arises is whether WCIMA s 62 gives an arbitrator the power to revive weekly payments once an order has been made discontinuing weekly payments. In my view, it does not. A claim initiated by giving notice payment to WCIMA s 57A comes to an end once weekly payments are discontinued. As this had occurred in the respondent's case by mid 2010, the present dispute cannot be brought within WCIMA s 62.
Ground 1 - Does s 57A require a claim under s 178 on each occasion?
The next issue that arises is whether WCIMA s 57A requires a new claim form to be lodged pursuant to s 178(1)(b) when there is a second or subsequent claim for compensation by way of weekly payments arising out of a recurrence of an injury within s 57A(1)(b)(ii). Put slightly differently: is it sufficient that the respondent complied with WCIMA s 57A and s 178 once in relation to the injury on 22 January 2009?
An analogous issue was considered by the Court of Appeal in McGowan. Wheeler JA considered the interpretation of WCIMA s 57A before it was amended in 2004. WCIMA s 57A was then in similar terms to its current form, save that the requirement to notify the employer in s 57A(1)(a) referred to the former s 84I, not the current s 178. WCIMA s 178 is in relevantly similar terms to the former s 84I. In relation to the issue of whether WCIMA s 57A requires a claim under s 84I on every occasion, her Honour stated [14] - [16]:
Before us, it was submitted by the appellant that s 57A(1) requires only that a claim for compensation has been made at the time of the original disability, which in this case would have been 1995. It was submitted that in the case of a recurrence, at least where that recurrence itself is not a disability within the meaning of that term in s 5 of the Act, all that a worker suffering from a recurrence needs to do is to serve one or the other of the forms referred to in s 57A(1)(b).
The difficulty with this argument, is that a number of the subsections contained in s 57A assume that there has been made a "claim for weekly payments". The only such claim mentioned in s 57A(1), is that referred to in subs (a). That suggests that on each separate occasion when a worker wishes to invoke the operation of s 57A, the worker must first have made a claim in accordance with s 84I(1)(b). Since s 84I(1)(b) requires a claim for compensation to be made within "12 months from the occurrence of the disability", a concept which is difficult to apply in relation to a situation where there is a recurrence, perhaps many years later, of a disability. That consideration suggests that only one s 84I form, at the time of the initial disability, is required.
As a matter of policy, both interpretations have their difficulties. Given that certain adverse consequences either to the employer, or to the insurer, or both, may flow from a failure to respond to a claim made pursuant to s 57A within a fairly short time-frame, there are obvious practical difficulties with an interpretation which enables a worker to invoke that provision merely by making available a certificate to the effect that he is unfit for work because of a recurrence of a disability, leaving the employer and/or the insurer to find the details of the original notice of disability, which disability may be described only in the most abbreviated way in the medical practitioner's certificate certifying the recurrence. I would, if it were necessary to decide, prefer the view that a form pursuant to s 84I must have been furnished in respect of each period for which the worker seeks to invoke s 57A. However, it is not necessary for present purposes to determine whether, in cases of recurrence, a further claim of the type referred to in s 57A(1)(a) must be served, since it appears to have been assumed below that the form provided to SGIO was adequate compliance with s 57A(1)(a), and that the only question at issue was whether there had been compliance with s 57A(1)(b).
Given the persuasive weight of the comments, it is appropriate that I adopt the view preferred by the court, that a form pursuant to WCIMA s 178(1)(b) be furnished for each period for which the worker needs to invoke s 57A.
This interpretation accords with the 'natural and ordinary meaning of the words used in the statute': Attorney-General (WA) v Schoombee [2012] WASCA 29 [31]. Workers' Compensation and Injury Management Act s 57A(1)(b) contemplates that a claim for compensation by way of weekly payments may be made in two situations:
(a)for an initial injury, in which case a First Medical Certificate is to be served pursuant to s 57A(1)(b)(i); and
(b)where there is a 'recurrence of an injury', in which case the worker needs to serve a certificate to the effect that the worker is unfit for work because of a recurrence of an injury pursuant to s 57A(1)(b)(ii).
I therefore find that the respondent was required to comply with WCIMA s 57A for the claim for weekly compensation from 14 March 2011.
Ground 1 - Summary of the procedure for a recurrent injury
The analysis so far may be summarised as follows:
(a)a claim for weekly payments must be made pursuant to WCIMA s 57A or s 57B;
(b)the claim comes to an end when the weekly payments are discontinued;
(c)a worker who is not certain that he or she will be able to permanently return to their former level of work capacity after the discontinuance of weekly payments may request an arbitrator to suspend those weekly payments pursuant to WCIMA s 62(2);
(d)if there is a recurrence of the injury whilst the weekly payments are suspended, the worker may apply pursuant to WCIMA s 62 to have an arbitrator review the issue of weekly payments and, if appropriate, lift the suspension;
(e)likewise, an employer may also make an application pursuant to WCIMA s 62 to have an arbitrator review the issue of weekly payments and, if appropriate, terminate the suspension;
(f)an application pursuant to par (d) or (e) above is part of the claim in par (a), meaning that no further form is required to be filed pursuant to s 178(1)(b) before making the application to the arbitrator;
(g)where, as in (b), the claim has come to an end on the discontinuance of weekly payments, if there is a recurrence of the injury, the worker may make a further application for weekly payments pursuant to WCIMA s 57A; and
(h)in the situation in (g), the worker must file a new notice pursuant to s 178(1)(b), but need not file a first medical certificate pursuant to s 57A(1)(b)(i), merely a certificate to the effect set out in s 57A(1)(b)(ii).
The fact that the various interpretations I have preferred lead to a coherent regime for the determination of claims for recurrent injuries confirms the validity of those interpretations.
Ground 1 - Did the respondent comply with the notice provisions within WCIMA s57A(1) and s178?
The arbitrator found that the following documents constituted sufficient compliance with WCIMA s 57A:
(a)the respondent's letter to Ms Tan;
(b)Dr Crawford's certificates of 3 February and 30 March 2011; and
(c)the letter from the respondent's solicitors to the appellant's insurer dated 11 February 2011.
A notice pursuant to WCIMA s 178(1)(b) must be in the form of Form 2B: WCIMR r 6AA. It was not in dispute that the respondent did not file a Form 2B in relation to the recurrence of her injury which led to her needing to reduce her hours from 14 March 2011.
The respondent did file a document entitled 'RiskCover Recurrence of Disability Form' in relation to the recurrence in May 2009. On its face, this document appears to be a Form 2B customised to a recurrence of an injury, including the declaration and consent at the end (though curiously it is headed 'Form 3A', and is not a WCIMR Form 3A). It is not apparent to me why the respondent did not adopt the same course in relation to the recurrence in March 2011.
I am therefore of the view that the respondent did not comply with WCIMA s 178(1)(b) in relation to the claim the subject of this appeal, and therefore did not comply with WCIMA s 57A.
Ground 1 – Is the discretion in WCIMA s 178(1)(c) able to be used?
The arbitrator is given a wide discretion in WCIMA s 178(1)(c) to allow a proceeding for the recovery of compensation to be maintained notwithstanding 'the want of or defect in accuracy' in the notice required to be given in s 178(1)(a) and (b). The discretion is able to be exercised if it is found in the proceedings for settling the claim that:
(a)that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in the defending the proceedings by the want, defect or inaccuracy; or
(b)that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause.
In the information given by the respondent to the appellant in or around March 2001, the respondent provided:
(a)her name and address as required by WCIMA s 178(2)(a);
(b)in ordinary language, the cause of the injury as required by WCIMA s 178(2)(b) – she could not cope with 50 hours per week because of her prior injury; and
(c)the date and place at which the injury occurred as required by WCIMA s 178(2)(c) – she was not coping with 50 hours per fortnight at her work, and would decrease her hours with effect from 14 March 2011; and
(d)medical certificates from Dr Crawford dated 3 February and 30 March 2011, which in my view comply with WCIMA s 57A(1)(b)(ii).
The information was provided within 12 months of the date on which the injury, that is the recurrence, that led to the claim for compensation occurred, substantively satisfying WCIMA s 178(1)(b).
There are a number of other factors which make it difficult for the appellant to assert prejudice in defending the proceedings.
(a)the respondent had previously filed a Form 2B and a First Medical Certificate in relation to the initial injury, and a RiskCover form in relation to the recurrence in May 2009.
(b)the respondent notified both her line manager and the appellants' insurer of her intention to reduce her hours prior to doing so;
(c)there is no evidence before me that the appellant's insurers responded to the letter of 11 February 2011 requiring the respondent to file a Form 2B;
(d)the respondent was examined by Dr Silbert at the appellant's request on 8 April 2011; and
(e)the appellant had the benefit of the historical material in relation to the respondent's claim since the initial injury was sustained in January 2009.
The specific prejudice referred to by counsel for the appellant in oral submission was that the employer did not have 'an opportunity to focus on what the workers say and what the doctors says are the cause of these recurrences or aggravations'. I do not accept that this was the case here. The information provided, which I have referred to, in the context of the information already available, made it abundantly clear as to what the respondent said was the cause of the recurrence. Dr Silbert appears to have closely questioned the respondent on the cause of the recurrence as he reports on her answers in his letter dated 12 April 2011. It would have been open for the appellant to have requested Dr Silbert to ask specific questions of the respondent should it have felt there was an information vacuum. Certainly after receipt of Dr Silbert's report there was no information vacuum.
The starting point in drawing together the threads from these authorities is whether approach of the NSW courts in Aitken and Novello, followed in Combi and Pratt, is inconsistent with the appellate decisions in Western Australia. I do not think it correct, as the compensation magistrate did in Combi, to distinguish the decisions in Bunce, Mitchell and McGinnis (and, by parity of reasoning, Ross) on the basis that the principle is limited to cases in which the unemployed worker seeks to be paid weekly payments on the basis that he was totally incapacitated for work, notwithstanding that each worker had been found to be partially incapacitated. The principle that 'he who asserts must prove' is of general application and, on the authorities that I have referred, at least applies to all applications pursuant to WCIMA sch 1 cl 7(2). The comments in McGinnis about proof of the lack of suitable work apply both to the case in which the worker asserts that he is not able to earn anything in some suitable employment and the case in which the worker asserts that he weekly amount that he is earning represents the limit of what he is able to earn in suitable employment.
In my view, the reference to a prima facie case and an evidential onus unhelpfully complicates matters. A worker who adduces evidence of her incapacity, of weekly earnings prior to the incapacity and her weekly earnings after the incapacity has established an evidential foundation for the arbitrator to find, on the balance of probabilities that she has proven, the diminution in her earning capacity that she has asserted. It is open to the employer to challenge whether the worker's actual earnings represent what she 'is able to earn in some suitable employment'. Unless the employer has foreshadowed this challenge, it would not ordinarily be necessary for the worker to prove that she is not able to earn more than she is in fact earning, along the lines set out in McGinnis. If it is in issue that the worker is able to earn more than she is in fact earning, then the arbitrator must review all the evidence to determine whether the worker has proven the diminution of earn capacity which she has asserted. That is, the worker must prove:
(a)what she is in fact earning in some suitable employment; and
(b)that she is not able to earn anything further in that or some other suitable employment.
It follows that the decisions in Combi and Pratt do not correctly state the law and that the arbitrator erred in law in following them. The decisions in Aitkin and Novello in relation to onus of proof do not represent the law in Western Australia.
Drawing together the threads from these authorities, the following propositions emerge:
(a)a worker asserting an entitlement to weekly payments pursuant to WCIMA sch 1 cl 7(1) or (2) must prove that entitlement on the balance of probabilities;
(b)where the claim is made pursuant to WCIMA sch 1 cl 7(2), the worker must prove:
(1)that he or she is partially incapacitated for work resulting from a compensable injury;
(2)the amount of the total weekly earnings which the worker would have been earning had she not been injured (calculated in accordance with the schedule); and
(3)the weekly amount which the worker 'is earning or is able to earn in some suitable employment or business after the occurrence of the injury'.
in which case the compensation is the difference between (2) and (3);
(c)the alternative 'is able to earn' is stated in case it appears that the worker is not in fact earning anything or that the amount which is actually being earnt is not a real estimate of the value, in the open market, of her economic capacity;
(d)a partially incapacitated worker may assert that there is no suitable employment within WCIMA sch 1 cl 7(2), which if proven would entitle the worker to weekly compensation in the amount of the total weekly earnings which the worker would have been earning had she not been injured (calculated in accordance with the schedule), without deduction;
(e)a worker seeking to assert (d) must prove the negative, which she can do as set out in McGinnis;
(f)a worker who adduces evidence of what she 'is in fact earning' in some suitable employment after the occurrence of the injury has established an evidential foundation for the arbitrator to find, on the balance of probabilities, that she has proven the diminution in her earning capacity that she has asserted;
(g)an employer may put in issue, and adduce evidence, that the amount which the worker 'is earning' is less than what the worker 'is able to earn in some suitable employment'; and
(h)if it is in issue that the worker may have the ability to earn more than she is in fact earning in some suitable employment, the worker must prove the negative, that is, the lack of alternate or additional suitable work which she would have the ability to do, which she can do as set out in McGinnis.
If there is evidence as set out in (f), (g) and (h), the arbitrator must review all the evidence and make factual findings, consistent with the overall onus on the worker asserting a claim within WCIMA sch 1 cl 7(2) to prove the diminution (if any) in his or her earning capacity as a result of the injury: Bunce, Mitchell, Ross.
The way in which an employer places in issue the fact that what the worker is in fact earning despite being incapacitated is less than what the worker is able to earn in some suitable employment is in its Reply to pt XI Application. An employer opposing a claim for weekly payments under WCIMA pt XI has to file a reply to the application pursuant to Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 27. The reply must:
(a)state concisely, but with full particularity what parts of the application, if any, are admitted by the party;
(b)state concisely, but with full particularity, what parts of the application, if any, are disputed by the party; and
(c)give full particulars of the grounds on which the relevant parts of the application are disputed by the party and the issues for determination by the arbitrator.
The reply is a critical document. Like pleadings and particulars in the general civil jurisdiction, the reply needs to 'furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it': Dare v Pulham[1982] HCA 70; (1982) 148 CLR 658, 664. This is an aspect of natural justice, by which the arbitrator is bound: WCIMA s 188(1); Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, 109; Kioa v West; sub nom Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81;(1985) 159 CLR 550, 582, 628; Liu v Inghams Enterprises Pty Ltd [2007] WASCA 134 [15]; MTI v SUL [No 2] [2010] WASCA 58 [1], [2], [42]. In MTU Newnes JA (with whom Pullin JA and Buss JA agreed) stated that the 'principle that a party must have an adequate opportunity to be heard ordinarily requires that the party affected be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material'. The opportunity also includes the right lead rebuttal evidence: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [39]; MTU [1], [2], [43].I accept that the rules of natural justice are to be applied in the context of the more flexible procedures of a WCIMA arbitration process: WCIMA s 188(5). However, requiring the employer to raise the issue of ability to earn in the reply has great practical merit. It means that the worker is not unnecessarily adducing evidence to negative a proposition which is not in issue.
Ground 2 – Determination
I am of the view that the arbitrator erred in law in following the decision in Combi and Pratt, which did not reflect the principles set out in Bunce, McGinnis, Mitchell and Ross.
It was not contested in the appeal that the amount of total weekly earnings which the respondent would have been earning had she not been injured was 50 hours per fortnight as a registered nurse.
The finding that Dr Crawford's evidence was to be preferred to that of Dr Silbert was not challenged on appeal.
Dr Crawford's evidence was that the respondent was able to earn from working 40 hours a fortnight as a registered nurse, but was not able to work the additional 10 hours a fortnight as a registered nurse. Using the words of WCIMA sch 1 cl 7(2), this is evidence that the respondent was able to earn up to 40 hours per fortnight in the 'suitable employment' of a registered nurse. It is also evidence that being a registered nurse was not 'suitable employment' for an additional 10 hours per fortnight. On this evidence, the respondent has established an entitlement to the difference of 10 hours per fortnight (subject to being calculated and adjusted in accordance with WCIMA sch 1).
In the present case, the appellant did not assert in its Reply to pt XI Application that it would dispute the application on the basis that the respondent had the ability to earn more than she was in fact earning by undertaking suitable, but different, work for the appellant. Rather, the two grounds were:
The applicant's partial incapacity is not caused by any compensable injury. It was her wish to reduce her hours of employment.
The applicant's claim for ongoing partial disability because she voluntarily chose to reduce her hours of employment which is contrary to medical evidence as to her continuing capacity to be fully employed working 25 hours per week or 50 hours per week.
This in turn deprived the respondent of the opportunity to ask questions of Dr Crawford as to whether additional clerical work or like was 'suitable employment'. I also note that in his reports dated 12 April 2011 and 23 September 2011 Dr Silbert did not deal with the issue of whether the respondent was able to undertake additional clerical work or like; his opinion was that the respondent was fit to work for 50 hours a fortnight as a registered nurse.
The sole evidence that the respondent might have some additional earning capacity was from answers to questions in cross examination. The relevant passage is as follows:
PORTER, MR: And in your discussions – I put it to you, I your discussions with your employer you didn't say that, "I'm going to reduce my hours because my condition has worsened," or, "become more severe."
MORRIS, MS: I did mention to Janet that I wasn't coping very well on my 50 hours.
PORTER, MR: But you were coping for a year. You'd done admirably to be able to ‑ to work that year.
MORRIS, MS: It's been – I'd been struggling. I have been struggling … (Indistinct) … that I haven't been struggling, because I'm still on pain medication.
PORTER, MR: All right. Okay. But there's no reason why you couldn't work the initial 10 hours per fortnight, somewhere else within the hospital system, is there? You'd done that before while you were on return to work. You were doing alternative duties?
MORRIS, MS: No, do not suppose I – I – I could.
PORTER, MR: All right.
MORRIS, MS: But there aren't any – any … (Indistinct) … wards.
PORTER, MR: No, but there ‑ but I – the answer being expressed in the negative, I take it – I'll just ask fro clarification, and that is that this – there is no reason why you couldn't do alternative duties, not full – not the full pre‑accident duties, in – at an alternative place within the hospital. That's what you're – you were saying, isn't it?
LOUREY, MR: I'm not sure it's – the question's clear at all.
PORTER, MR: Can't work – you say you can't work 50 hours a week, but you can work 40 hours a week, but you couldn't do make up doing alternative work in the hospital, so long as it's not the – the pre‑accident nursing duties which you ‑ ‑
MORRIS, MS: What type of work would I be doing then?
PORTER, MR: Well, that's not the question. But if you were given alternative duties, such as clerical, such as telephone work, such as administrative work, you're not incapacitated from doing that sort of work?
MORRIS, MS: No.
On the materials before me, it is apparent that the issue of retained capacity in duties other than nursing was raised for the first time in cross‑examination of the respondent, rather than in any considered way prior to the commencement of the hearing.
As the appellant did not place in issue in its reply (or even in the medical reports exchanged) the fact that the respondent had the capacity to work more than 40 hours a fortnight based on there being employment suitable for her other than as a registered nurse, this passage in the cross‑examination which I have quoted could:
(a)only be taken into account on the issue of whether the respondent could do 50 hours a week as a registered nurse; and
(b)not be used to open up a new issue – further capacity to earn – without notice, which the respondent had to rebut.
On this basis, I am satisfied that the respondent is only able to earn 40 hours per fortnight as a registered nurse, and that this is the datum point that ought to be used for determining weekly compensation for partial incapacity.
Final orders
For the reasons which I have set out above, I consider that the arbitrator made two errors of law in her decision. As set out in [52] above, this opens the whole decision appealed from to review. For the reasons which I have set out above, I am of the view that:
(a)the respondent's claim was properly brought within WCIMA s 57A(1) and s 178(1), by operation of s 178(1)(c); and
(b)the respondent has satisfied the onus on her to show a partial incapacity of 10 hours per fortnight.
The arbitrator thus made the correct substantive decision. My review has not persuaded me that the arbitrator's decision should be varied, discharged or otherwise disturbed: Boston Clothing 586; Pacific Industrial [20] – [26], [30], [31].
The appeal should be dismissed.
I will hear from counsel as to the form of orders that should be made.
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