The Cerebral Palsy Association of Western Australia Ltd t/as Ability Centre v Papalia
[2019] WADC 180
•19 DECEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THE CEREBRAL PALSY ASSOCIATION OF WESTERN AUSTRALIA LTD t/as ABILITY CENTRE -v- PAPALIA [2019] WADC 180
CORAM: LEMONIS DCJ
HEARD: 29 MAY 2019
DELIVERED : 19 DECEMBER 2019
FILE NO/S: APP 6 of 2019
BETWEEN: THE CEREBRAL PALSY ASSOCIATION OF WESTERN AUSTRALIA LTD t/as ABILITY CENTRE
Appellant
AND
NICHOLAS FRANK PAPALIA
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram: ARBITRATOR RUTHERFORD
File Number : A53843
Catchwords:
Appeal from determination of Arbitrator of separate questions - Relevance of return to work and final medical certificate where s 57A(5) of the Workers'Compensation and Injury Management Act 1981 (WA) is engaged
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982
Result:
Appeal allowed in part
Representation:
Counsel:
| Appellant | : | Mr G R Hancy |
| Respondent | : | Mr A Gunasekera |
Solicitors:
| Appellant | : | Hall & Wilcox (Perth) |
| Respondent | : | Matthew Glossop & Associates |
Case(s) referred to in decision(s):
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Footscray City College v Ruzicka [2007] VSCA 136
Glover-Jackson v G & M Construction Pty Ltd (Unreported, WASC, Library No 930231, 22 March 1993)
Heat Containment Industries v Kimberley (1990) 2 WAR 47
McGowan v Castrum Pty Ltd [2005] WASCA 198
Mohammadi v Bethune [2018] WASCA 98
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Qantas Flight Catering v Joncevski [2004] WASCA 121
Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72
Royal Perth Hospital v Morris [2012] WADC 82
Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992)
LEMONIS DCJ:
This appeal is brought pursuant to s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Workers' Compensation Act). Principally, the appeal concerns the proper interpretation of s 57A of the Workers' Compensation Act.
The respondent, Mr Papalia, was previously employed by the appellant, the Cerebral Palsy Association of Western Australia (CPA). Mr Papalia made a claim for compensation against CPA by way of weekly payments arising out of an alleged workplace injury. Mr Papalia subsequently made an application for arbitration against CPA in respect of his claim, seeking weekly payments from 9 March 2016 'to present and continuing'.[1]
[1] Document 2 of Mr Papalia's bundle of documents.
The application for arbitration is yet to be determined. Instead, in the arbitration, three preliminary issues were identified by the parties for determination by the arbitrator (the Arbitrator). These preliminary issues were determined by the Arbitrator upon the parties' written submissions, there being no hearing. This appeal concerns only the second preliminary issue as determined by the Arbitrator.[2] It is described in the Arbitrator's reasons as follows:[3]
The effect of any 'return to work' and a 'final medical certificate' to the application of section 57A(5) of the Workers' Compensation Act.
[2] CPA by par 4 of its written submissions pursues only ground 1 of its notice of appeal.
[3] Arbitrator's written reasons [4], page 3.
CPA contends a final medical certificate was provided in respect of Mr Papalia certifying he had full capacity for work from 18 May 2016. CPA also contends Mr Papalia returned to work on 18 May 2016. This appeal is not concerned with whether in fact such a certificate was provided, or there was a return to work. Rather, the appeal is concerned with the effect of such matters if ultimately established.
Section 57A of the Workers' Compensation Act sets out the applicable process where a worker makes a claim for compensation by way of weekly payments and the employer is insured. Section 57A(5) is, in effect, a deeming provision, which founds a worker's entitlement to weekly payments where the employer's insurer does not respond to the worker's claim within the timeframe specified by s 57A(2). CPA accepts s 57A(5) has been activated in respect of Mr Papalia's claim by reason of CPA's insurer not responding within the requisite timeframe.
The parties' dispute is directed to two aspects. First, what is the period of Mr Papalia's claim for weekly compensation payments which is the subject of s 57A(5). Second, what events may bring that claim to an end. It is against this context that the possible relevance of a final medical certificate and a return to work are to be considered.
The Arbitrator held that the provision of a final medical certificate and a return to work are not relevant factors to the operation of s 57A until CPA, or its insurer, makes an application for arbitration under s 57A(5). The effect of this finding is that even if Mr Papalia had returned to work on 18 May 2016, or was certified as being fit for work from that day, those matters do not by themselves extinguish his entitlement to weekly payments. Rather, notwithstanding such matters, his entitlement continues unless and until an Arbitrator determines otherwise on an application brought pursuant to s 57A(5).
CPA appeals against this finding pursuant to ground 1 of its notice of appeal. Ground 1 contends that the matters of return to work and the provision of a final medical certificate are both relevant 'to determining the weekly payments claimed and the entitlement of [Mr Papalia] is limited to the weekly payments claimed'. CPA has not brought any application for arbitration under s 57A(5).
Grounds 2 and 3 are not pressed.
Leave to appeal
Pursuant to s 247 of the Workers' Compensation Act, CPA requires leave to appeal. The circumstances in which leave is to be granted are set out in s 247(2). I do not consider s 247(2)(a) applies here as an amount of compensation has not yet been determined. Instead, I consider that s 247(2)(b) applies. That is, I am not to grant leave to appeal unless a question of law is involved. If it is established that the appeal involves a question of law, 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.[4] The construction of a statute is a question of law.[5] Further, a decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been or might have been different.[6]
[4] Royal Perth Hospital v Morris [2012] WADC 82 [50].
[5] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 396 - 397.
[6] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15].
In my view for the reasons set out below, the appeal involves the proper interpretation of s 57A within the overall scheme of the Workers' Compensation Act. Accordingly, in my view, the appeal involves a question of law. Furthermore, in the circumstances of this case, given the significance of the point to Mr Papalia's claim, it is in the interests of justice that leave be granted. I therefore grant leave.
Nature of appeal
An appeal under s 247 is not a hearing de novo. It is also not an appeal in the strict sense. Pursuant to s 247(5), an appeal under s 247 is to be way of review of the decision appealed against. I must conduct a real review.[7] For the purposes of the review, CPA must provide a proper basis for disturbing the Arbitrator's decision by pointing to some error in it.[8] The review must persuade me that the order being reviewed should be varied, discharged or otherwise disturbed.[9]
[7] Catholic Education Office of WA v Granitto [2012] WASCA 266 [56].
[8] Catholic Education Office of WA v Granitto [57].
[9] Catholic Education Office of WA [57]; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20], [26].
Background
The relevant background is set out in the Arbitrator's reasons, and is supplemented by CPA's and Mr Papalia's respective books of documents provided to me for the appeal. To the extent that the material in the books of documents was not before the Arbitrator, pursuant to s 247(6) and with the consent of the parties, I grant leave for that material to be admitted as evidence in respect of the appeal.
However, I should make clear that I receive the further material for the purposes of putting in proper context Mr Papalia's claim and how it evolved. Bearing this qualification in mind, the relevant background is as follows:
1.Mr Papalia made a claim under the Workers' Compensation Act against CPA in relation to a claimed psychiatric injury said to have occurred on 9 March 2016.[10]
2.Mr Papalia's claim was made by a form dated 21 March 2016, the most legible copy of which appears at document number 1 of CPA's book of documents. The claim form was accompanied by a first certificate of capacity, dated 17 March 2016, which appears at document number 2 of CPA's book of documents. It certified Mr Papalia as having no capacity for work from 13 March 2016 to 21 March 2016, with a review to be conducted on 17 March 2016. The certificate certifies both historical and future incapacity.
3.Subsequently, documents described as progress certificates of capacity in respect of Mr Papalia certified him as being unfit for work through to 8 May 2016.[11] A document described as a final certificate of capacity dated 12 May 2016 in respect of Mr Papalia certified that he had full capacity for work from 18 May 2016.[12] Box 5 on the form referable to the reasons why Mr Papalia had capacity for work is not filled out.
4.On 22 March 2016 CPA made a claim on its insurer, QBE, pursuant to s 57A of the Workers' Compensation Act.[13]
5.On 6 April 2016 QBE issued a Form 3C Notice to Mr Papalia (that is, a notice under s 57A(3)(c)) advising that QBE was unable to make a decision as to Mr Papalia's claim.[14]
6.On 20 June 2016, QBE sent to Mr Papalia a Form 3B Notice purportedly pursuant to s 57A(3)(b) of the Workers' Compensation Act, denying liability for his claim.[15]
7.Mr Papalia did not lodge any application for compensation until mid-2018. This resulted in two separate applications for conciliation.[16]
8.The second conciliation conference was held on 1 August 2018. At this conference, the conciliation officer raised with the parties whether or not there had been compliance by QBE with s 57A(3).[17]
9.On 28 August 2018 Mr Papalia lodged an application for arbitration in reliance on QBE not having complied with s 57A(3) of the Workers' Compensation Act.[18] The preliminary issues were determined within the arbitration initiated by Mr Papalia's application.
[10] Arbitrator's reasons [7], page 4.
[11] Document numbers 3 ‑ 6 of CPA's book of documents.
[12] Document number 7 of CPA's book of documents.
[13] Arbitrator's reasons [9], page 4.
[14] Arbitrator's reasons [10], page 4.
[15] Arbitrator's reasons [11], page 5.
[16] Arbitrator's reasons [12] and [13], page 5.
[17] Arbitrator's reasons [15], page 5.
[18] Arbitrator's reasons [16], page 5.
The parties are in agreement that Mr Papalia's application for arbitration is brought pursuant to s 58 of the Workers' Compensation Act.[19]
[19] This was confirmed by the parties at a further hearing held at my instigation on 27 November 2019.
Principles of statutory interpretation
The principles applicable to undertaking statutory construction have recently been summarised by the Court of Appeal of Western Australia in Mohammadi v Bethune.[20] I set those principles out below and apply them to this appeal:
[20] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
31The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:
'The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.'
32The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
33The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
34Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. As we will explain later in these reasons, we think this is such a case.
35Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
36Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.
(footnotes omitted)
In addition, while as a general rule it is impermissible to call in aid in the construction of an Act the delegated legislation made under that Act, it is useful here to refer to the Workers' Compensation and Injury Management Regulations 1982 (Workers' Compensation Regulations) for the purposes of ascertaining what the legislative scheme is.[21]
[21] Statutory Interpretation in Australia, 8th ed, DC Peers and RS Geddes [3.41].
Further, in construing legislation, constructions leading to absurd results are to be avoided, if possible.[22]
[22] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 80; Footscray City College v Ruzicka [2007] VSCA 136 [16].
Statutory provisions
The significant provisions of the Workers' Compensation Act relevant to the determination of this appeal are as follows:
Section 18:
18.Employers liable to pay compensation for injuries to workers
(1)If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
(2)If an injury of a worker occurs and the worker dies, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1A.
(3)Subsection (2) does not limit the application of Schedule 5 in relation to the death of the worker.
Section 57A:
57A. Claims procedure where employer insured
(1)This section applies where -
(a)a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba)the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b)the worker suffering the injury serves on the employer a certificate signed by a medical practitioner -
(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
(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.
Section 59 - s 62:
59.Workers who claim compensation to notify employers as to remunerated work
(1)This section applies to a worker who has claimed or is receiving weekly payments of compensation from an employer (the employer).
(2)A worker who commences remunerated work (other than work with the employer) after making a claim for weekly payments of compensation, is to, within 7 days of -
(a)commencing the work; or
(b)receiving notification under subsection (3),
whichever is the later, inform in writing the employer or the employer's insurer of the commencement of the work.
Penalty: $500.
(3)The employer or the employer's insurer is to notify in writing a worker of the worker's obligations under subsection (2).
(4)A worker is not to be convicted of an offence under subsection (2) unless the employer or the employer's insurer has complied with subsection (3).
(5)The employer or the employer's insurer may, in writing, request a worker to provide the following particulars of remunerated work (other than work with the employer) commenced after the making of the worker's claim for weekly payments of compensation -
(a)the date of commencement of the work; and
(b)the title, classification or description of the work; and
(c)the remuneration for the work; and
(d)the name and address of the person (if any) for whom the work is performed.
(6)A worker is to provide in writing the particulars requested under subsection (5) within 7 days of the date of the request.
Penalty: $500.
(7)If the particulars provided by the worker under subsection (6) establish that the worker has commenced remunerated work, the employer or the employer's insurer may discontinue or reduce the worker's weekly payments of compensation in accordance with the particulars.
(8)The employer or the employer's insurer must not discontinue or reduce a worker's weekly payments of compensation under subsection (7) otherwise than in accordance with the particulars provided by the worker under subsection (6).
Penalty: $2 000.
(9)Subject to sections 57A, 57B and 58, if -
(a)a worker has claimed but has not received from the employer, weekly payments of compensation;
(b)the worker provides particulars under subsection (6);
(c)the particulars establish that the worker has commenced remunerated work,
the employer or the employer's insurer may make a decision in accordance with the particulars as to whether or not weekly payments of compensation are to be made for the period to which the particulars relate, and if so, the amount of the weekly payments.
(10)A worker who disputes the discontinuance or reduction of weekly payments of compensation under subsection (7) may apply for an order of an arbitrator that the weekly payments be reinstated.
60.Discontinuing or reducing weekly payments, order as to
(1)Where weekly payments are made to a worker pursuant to this Division, the employer may apply at any time for an order of an arbitrator that such payments be discontinued or reduced.
(2)If the employer satisfies an arbitrator that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the arbitrator may order that the payments be suspended for such time as the arbitrator directs or be discontinued or be reduced to such amount as the arbitrator thinks proper or the arbitrator may dismiss the application.
61.Discontinuing or reducing weekly payments without order
(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
(2)Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement -
(a)informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein; and
(b)informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his injury; and
(c)containing such other information as may be prescribed.
(2a)If a person is required to give notice under subsection (1) and -
(a)fails to give the notice within the period referred to in that subsection; or
(b)gives a notice that does not comply with subsection (2), the person commits an offence.
Penalty: $2 000.
(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
(4)Upon the hearing of an application referred to in subsection (3) an arbitrator shall -
(a)adjourn the application on such terms as the arbitrator thinks fit; or
(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
(4aa)A reference in subsection (1), (3) or (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer's insurer.
(4a)Upon the hearing of an application referred to in subsection (3) an arbitrator -
(a)may, where the case requires, take into account whether -
(i)a return to work program has been established for the worker under section 155C(1); and
(ii)the establishment, content and implementation of the return to work program are in accordance with the code as defined in section 155; and
(iii)the worker has participated in the return to work program,
and for the purposes of determining the application accordingly treat the worker's incapacity as being of such degree as the arbitrator sees fit; and
(b)shall, where the case requires, take into account matters referred to in clause 8.
(5)Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.
Penalty: $2 000.
(6)A conviction for an offence that is a contravention of subsection (5) shall not affect any liability for the making of weekly payments of compensation under this Act.
(7)Subsections (1) and (2) do not apply to a discontinuance of payments -
(a)on payment in full of the prescribed amount; or
(b)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or
(ba)if section 93E(8) or 93P(2)(b) applies to the payment of compensation; or
(c)on suspension of payments in accordance with section 72, or 145D; or
(d)on failure to comply with section 69 by a worker who does not reside in the State.(8)Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).
62. Reviewing and discontinuing, suspending or changing weekly payments
(1)Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2)An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
Section 178(1)(b):
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 -
…
(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,
…
Schedule 1 cl 7:
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.
Arbitrator's reasons
It is important to explain what the Arbitrator did, and did not, find. It is also important to explain what application was in fact before the Arbitrator.
Mr Papalia's application before the Arbitrator was to enforce his rights by reason of the operation of s 57A(5). The parties accept in this appeal the application was brought pursuant to s 58. CPA has not brought a separate application to be relieved from the operation of s 57A(5).
The Arbitrator's reasons in relation to the interpretation of s 57A are contained at [25] ‑ [29] and [34] ‑ [46]. I have set out below [44] ‑ [46] of the Arbitrator's reasons for decision (ARD):
[44]On that basis, even if Mr Papalia had returned to work, or that a final medical certificate was in fact issued, that does not appear to be a determining factor within s 57A(5) of the Act, until an application is made pursuant to s 57A(5) of the Act, when such matters can presumably be taken into account.
[45]That result may be seen as harsh on the insurer/employer, in particular in the circumstances of this dispute, but I doubt the legislature anticipated weekly payments not commencing immediately, or soon, after a breach of the provisions of s 57(3) of the Act.
[46]My conclusion therefore is that the 'fact' of a return to work or the provision of a 'final' certificate are not relevant factors to the operation of s 57A of the Act.
While [46] of ARD is in absolute terms that a return to work or the provision of a final medical certificate are not relevant factors to the operation of s 57A, on their whole, I do not read the Arbitrator's reasons as having this result. That is, I do not interpret the Arbitrator's reasons as meaning that those matters have no relevance to s 57A. Paragraph 44 of ARD makes clear such matters may be relevant where an application is brought by the employer under s 57A(5). Further, [6(b)] of ARD states the Arbitrator's view that any return to work and final medical certificate has no relevance to the operation of s 57A(5) of the Workers' Compensation Act. It does not state they have no relevance to an application brought under s 57A(5).
Accordingly, on the whole, I read the Arbitrator's reasons as meaning:
1.any return to work or the provision of a final medical certificate are not relevant factors to an application by Mr Papalia to enforce s 57A(5); and
2.such matters may be taken into account in an application by CPA under s 57A(5), which is to be determined in accordance with s 57A(6).[23]
[23] This view is consistent with Mr Papalia's written submissions at par 37.
In coming to his findings, the Arbitrator held that s 57A(5) appears to be a standalone provision.[24] The Arbitrator also held that:
The legislature has set out only one process by which the worker's entitlement to weekly payments can be [sic, delete] otherwise be determined and that is an application under s 57A(5).
[24] ARD [43].
The Arbitrator did not determine the meaning of the phrase 'weekly payments claimed' where it appears in s 57A(3) and s 57A(5). In fairness to the Arbitrator, this issue was not raised directly by the parties with the Arbitrator. At its highest, the issue was raised by par 40 of CPA's submissions to the Arbitrator in terms:
[CPA] says that the 'claim for compensation' in the present case is limited to the period of certification between the date of the first medical certificate, so 17 March 2016 and the final date of incapacity provided for in the final medical certificate issued on 12 May 2016.
In my view, for the reasons explained below, an important factor in the disposition of this appeal is the proper interpretation of the phrase 'weekly payments claimed' which appears in s 57A, in particular, in s 57A(3) and s 57A(5). In undertaking this task, in my view it is necessary to first assess how a claim the subject of s 57A(1) is constituted, and what is the scope of such a claim.
Section 57A - Overview
Section 57A must be construed having regard to all the provisions of the Workers' Compensation Act. As the Court of Appeal stated in Mohammadi:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
Section 57A sets out the applicable process where a worker makes a claim for compensation by way of weekly payments and the employer is insured. Section 57B sets out the process where the employer's insurer has declined liability, or the employer is not relevantly insured.[25] Aside from the availability of insurance cover, the procedure set out in s 57A and s 57B as to how a claim is made and responded to is substantially similar, albeit not identical.
[25] Section 57B(1).
In McGowan v Castrum Pty Ltd,[26] Wheeler JA (with whom the other members of the court agreed) stated that the purpose of s 57A 'in broad terms appears to be to ensure that there is speedy processing of workers' compensation claims'.[27] Her Honour also noted the difficulties in determining the scope of a claim the subject of s 57A.[28] Unfortunately, as is explained below, the difficulties which her Honour identified in determining the scope of the subject claim have not been addressed by legislative amendment.
[26] McGowan v Castrum Pty Ltd [2005] WASCA 198.
[27] McGowan v Castrum Pty Ltd at [4]; see also Glover-Jackson v G & M Construction Pty Ltd (Unreported, WASC, Library No 930231, 22 March 1993), (10) (per Malcolm CJ, with whom Ipp & White JJ agreed).
[28] McGowan at [2], [6] and [7].
In approaching the construction of s 57A, her Honour was of the view it 'should simply be construed according to its terms, without adopting either a beneficial or penal approach'.[29]I adopt that approach.
[29] McGowan at [28].
Section 57A applies in the circumstances set out in s 57A(1). Relevantly to this case, s 57A 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 s 178(1)(b);[30] and
(b)the employer is insured against liability in respect of the compensation claim;[31] and
(c)the worker serves on the employer a certificate signed by a medical practitioner in or to the effect of the form prescribed containing substantially the information sought in the form.[32] The relevant form is Form 3.
[30] Section 57A(1)(a).
[31] Section 57A(1)(ba).
[32] Section 57A(1)(b)(i).
Furthermore, s 57A may also apply where a Form 3 certificate has been provided and thereafter a further certificate is served on the employer to the effect that the worker is unfit for work because of a recurrence of an injury the subject of the earlier certificate.[33] There is no prescribed form for this further certificate. Whether a claim in respect of a recurrence of an injury requires a further claim form to be lodged by the worker under s 178(1)(b) is a difficult question, which I am of the view I do not need to resolve for the purposes of this appeal.[34]
[33] Section 57A(1)(b)(ii).
[34] See McGowan at [14] – [17].
While the claim here is not for the recurrence of an injury, the procedure by which an injury recurrence claim may be made is part of the statutory framework of s 57A. It therefore plays a part in its interpretation.
Upon the worker making a claim under s 57A(1), pursuant to s 57A(2A) the employer must claim under their insurance policy before the expiration of five full working days of the worker making the claim and serving on the employer the required medical certificate.
Once the employer has made the claim under their insurance policy, s 57A(3) allows the insurer a relatively short time frame of 14 days to make a decision in respect of the worker's claim. Section 57A(3) sets out three options available to the insurer. They are:
(a)to give notice to the worker and the employer that liability is accepted in respect of all of the weekly payments claimed (s 57A(3)(a)). The requisite notice is form 3A;[35]
(b)to give notice to the worker and the employer that liability is disputed in respect of all or any of the weekly payments claimed (s 57A(3)(b)). This notice must also specify the reasons why liability is disputed and the provisions of the Workers' Compensation Act relied on for the dispute.[36] The requisite notice is form 3B;[37] or
(c)to give notice to the worker, the employer and the Director that the insurer is not able to make a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed (s 57A(3)(c)). The notice must also specify the reasons why the decision cannot be made within the time allowed.[38] The reasons can include that the insurer requires further medical information or further information as to the worker's weekly earnings.[39] The requisite notice is form 3C.[40]
[35] Regulation 6B.
[36] Section 57BA(3).
[37] Regulation 6C.
[38] Section 57BA(6).
[39] Section 57BA(6)(b)(i) and s 57BA(6)(b)(ii) respectively.
[40] Regulation 6D.
Where within a further 10 days after the insurer has notified the Director that the insurer is not able to make a decision, the insurer has not given a further notice that liability is accepted or disputed, the worker's claim is deemed to be disputed (s 57A(3a)).
Pursuant to s 57A(5), where the insurer fails to comply with s 57A(3) (for example, by not giving notice within the 14 day timeframe), the worker is 'entitled to the weekly payments claimed' and the insurer is 'liable to indemnify the employer in respect of those weekly payments'.
Section 57A(5) provides that the employer or insurer may apply for a determination under s 57A(6), which determination in effect is to relieve the employer or the insurer from the deeming consequences of s 57A(5). However, any such determination does not affect the worker's entitlement in respect of the period before that determination.[41]
[41] Glover-Jackson v G & M Construction Pty Ltd (11) – (12) (Malcolm CJ, with whom Ipp & White JJ agreed).
Pursuant to s 57A(7), an employer is to make the first of the weekly payments not later than 14 days after:
(a)the insurer notifies the employer that liability has been accepted, or the time prescribed by s 57A(3) has expired without the insurer having given the notification required by that subsection to the employer;
(b)or, an Arbitrator has ordered under an application brought under s 58 that weekly payments commence under s 57A.
Section 57A(7) provides that subsequent weekly payments shall be made on the employer's usual pay days.
Statutory context of s 57A
It is important to consider the statutory context of s 57A.
Section 57A is within div 5 of pt III of the Workers' Compensation Act. Division 5 governs the commencement, review, suspension and cessation of weekly payments.[42]
[42] Regis Aged Care Pty Ltd v Hunter [2018] WASCA 50 [15] – [19].
One of the three prerequisites for s 57A to apply[43] is that a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with s 178(1)(b).[44] However, s 178(1)(b) only speaks of 'the claim for compensation with respect to such injury' and does not refer to weekly payments, or total or partial incapacity.
[43] See [32(a)] of these reasons.
[44] Section 57A(1)(a).
Section 18 is the starting point for a claim for compensation under the Workers' Compensation Act. Pursuant to s 18(1), if an injury of a worker occurs, the employer shall, subject to the Workers' Compensation Act, be liable to pay compensation in accordance with sch 1.
Broadly speaking, a worker's available claims for compensation pursuant to sch 1 are for weekly payments calculated by reference to weekly earnings (cl 7), medical and other expenses (cl 17, cl 18A, cl 18D and cl 19) and hospital charges (cl 18).
The employer is liable to pay compensation from the date of incapacity resulting from the injury.[45] Further, in order for a worker to obtain weekly compensation payments, it is necessary to establish both incapacity and injury.[46]
[45] Regis Aged Care Pty Ltd v Hunter [14]; s 21.
[46] Regis Aged Care Pty Ltd v Hunter [13].
Clause 7(1) of sch 1 relevantly provides that when total incapacity for work results from the injury, weekly payments of compensation are payable during the incapacity equal to the weekly earnings of the worker as calculated and varied in accordance with sch 1.
Clause 7(2) is directed to partial incapacity, relevantly providing that when partial incapacity for work results from the injury, weekly payments of compensation are payable during the partial incapacity, calculated as specified in the clause. This calculation has two inputs. First, the total weekly earnings of the worker calculated and varied in accordance with sch 1. Second, 'the weekly amount exclusive of payments for overtime or any bonus or allowance which [the worker] is earning or is able to earn in some suitable employment or business after the occurrence of the injury.' In effect, the weekly payment payable during the partial incapacity is arrived at by deducting the second input from the first.
An assessment of what the worker 'is able to earn in some suitable employment or business after the occurrence of the injury' requires an assessment of the worker's future capacity for work. The hours and duties the worker is capable of performing will affect this assessment.
The entitlement of the worker pursuant to cl 7(1) is to a payment of compensation 'during the incapacity' and pursuant to cl 7(2) 'during the partial incapacity'.
Both cl 7(1) and cl 7(2) are subject to two exceptions – s 56 and cl 7(3). Section 56 provides for the entitlement to weekly compensation to cease upon the worker attaining a certain age. Clause 7(3) provides for the entitlement to weekly compensation to cease upon a prescribed cap being reached.
Section 178(1)(b) and its interaction with s 57A
It is useful to now return to s 178(1)(b). It provides that proceedings for recovery under the Workers' Compensation Act of compensation for an injury are not maintainable unless two separate events have occurred.
First, notification of the occurrence of the injury has been given to the employer containing the information prescribed by s 178(2) as soon as practicable after that occurrence.[47] The prescribed information is directed to the cause, date and place of the injury, not to the worker's claim for compensation.[48]
[47] Section 178(1)(a); see also s 179(1).
[48] Section 178(2).
Second, the claim for compensation with respect to such injury has been made within 12 months after the occurrence of the injury.[49] This is subject to s 178(1)(d), which in effect provides that the failure to make the claim within the relevant period is not a bar where the failure to do so does not cause prejudice to the employer, or is excusable.
[49] Section 178(1)(b).
Regulation 6AA prescribes Form 2B as the form by which a claim for compensation pursuant to s 178(1)(b) is to be made. Form 2B contains parts for each of the worker, the employer and the insurer to complete. Form 2B does not contain any part where the worker is to specify whether, and if so, for what period, a claim for weekly compensation payments is made, or whether such a claim is for total or partial incapacity. The only part of Form 2B which deals with the impact on the worker's capacity to work is in respect of the 'Occurrence details', which asks whether the worker had to stop working upon the occurrence happening. Form 2B does not however ask if and when the worker was able to return to work.
The part of Form 2B for the insurer to complete includes reference to the estimated time off work. This suggests the information provided to the insurer accompanying the worker's claim contains sufficient information to enable the insurer to make an assessment of the estimated time off work.
Given Form 2B does not seek to elicit information directed to the worker's capacity for work, it is necessary to consider where such information is to be found for the purposes of a claim for weekly payments pursuant to s 57A. As Wheeler JA observed in McGowan,[50] the further information is contained in the medical certificate required by s 57A(1)(b).
[50] McGowan [6], [7], [30].
Regulation 6A(1) prescribes Form 3 in Appendix I as the form of the medical certificate. Form 3 addresses injury and incapacity, both of which are required for a worker to obtain weekly compensation payments. Box 4 in Form 3 addresses the worker's description of the injury. Box 5 addresses the medical assessment, including the clinical findings and diagnosis.
After the words 'Having considered the health benefits of work, I find this worker to have', box 6 contains the following three alternatives in respect of capacity for work:
1.full capacity to work from a specified date, with or without further treatment being required;
2.some capacity to work from a commencement date to an end date, performing either preinjury duties, or modified or alternative duties, for preinjury hours, or modified hours; or
3.no capacity for any work from a commencement date to an end date.
Where there is no capacity for work, the medical practitioner is to provide their clinical reasoning for that finding.
Where there is partial incapacity due only to a reduced capacity to perform pre-injury hours, that part of Form 3 specifying the modified hours of work allows for a calculation of the partial incapacity payment prescribed by sch 1, cl 7 (2). However, where the partial incapacity is due to modified or alternative duties (either separately to or in combination with reduced work hours), the affect of such modified or alternative duties on the amount the worker is able to earn after the injury may be not easily capable of calculation and may be the subject of differing views.
Box 7 of Form 3 provides for an injury management plan in respect of the worker. Box 8 addresses whether or not the worker needs to be reviewed again. If the next review date is greater than 14 days (presumably after the medical practitioner signs the form) then the medical practitioner is to provide clinical reasoning for why a period greater than 14 days is required. Where the worker does not need to be reviewed again, the certificate is regarded as a First and Final Certificate.
As explained, Form 2B given under s 178(1)(b) does not contain sufficient information to discern whether the worker's claim is for total or partial incapacity, or from which to calculate the applicable weekly payments where there is partial incapacity. That being the case, in my view, the claim the subject of s 57A(1) is constituted by a combination of the claim made under s 178(1)(b) (Form 2B) and the medical certificate referred to in s 57A(1)(c) (Form 3). It is from a combination of these documents – Form 2B and Form 3 – that the claim for weekly payments is constituted and is to be understood.
What are the weekly payments claimed the subject of s 57A(1)
Parties' contentions
Mr Papalia submits that 'a claim by way of weekly payments for total or partial incapacity' the subject of s 57A(1) is a claim for weekly payments of unspecified duration. Mr Papalia submits that the duration of the worker's incapacity is unlikely to be known at the time the claim for compensation is made. Therefore, it is said, a claim the subject of s 57A(1) is referable only to whether the claim is for total, or partial, incapacity and not to the period for which that claim is made. In this way, Mr Papalia submits that the claim is for continuing weekly payments until such time, pursuant to other provisions of the legislative scheme, those payments are to cease or reduce.[51]
[51] ts 47.
CPA submits the claim the subject of s 57A(1) encompasses both whether the claim is for partial or total incapacity and the period for which the weekly payments are claimed. CPA submits that the claim the subject of s 57A represents a sum that is ascertainable at the point in time when the insurer is required to give notice under s 57A(3). Therefore, it is said, the weekly payments claimed in terms of their quantum and duration are to be ascertained from a combination of the form required by s 178(1)(b) (Form 2) and the medical certificate required by s 57A(1)(c) (Form 3).
In this way, CPA's primary position is the claim for weekly payments is limited to the period of incapacity set out in the first medical certificate. Here, that is for the period to 21 March 2016. Accordingly, CPA's primary position is consistent with what the Arbitrator found, that is, the final medical certificate and a return to work are not relevant. However, CPA's primary position is based on different grounds to those which underpinned the Arbitrator's reasons.
The final medical certificate and a return to work are relevant on CPA's alternative positon. On CPA's alternative position, the date certified in the final medical certificate as to when Mr Papalia was fit for work sets the outer limit of his claim. If that be the case, it follows that at the time the insurer is required to give notice under s 57A(3), the insurer will not be apprised of the duration of the claim. Therefore, CPA's alternative position does not satisfy its expressed concern that at the time the insurer is called upon to give notice under s 57A(3), the magnitude of the claim can be quantified. Further, CPA submits a return to work brings Mr Papalia's claim to an end.
In essence, the distinction between the parties' respective positions as to the operation of s 57A(1) is this. Mr Papalia's position is that the claim for future weekly payments is a continuing claim, irrespective of what period of future incapacity is certified in the medical certificate. CPA's position is that the medical certificate defines the period for which weekly payments are claimed, or as an alternative position, the period is defined by a combination of the first certificate and the further certificates directed to Mr Papalia's capacity.
Accordingly, a critical issue in this appeal is the extent to which the medical certificates delineate the ambit of the worker's claim, in particular whether the medical certificates delineate the period for which payments for future incapacity are claimed.
Analysis
In undertaking the analysis of the parties' positions, I proceed by addressing the following matters in order:
70.1the underlying purpose and textual considerations of s 57A;
70.2the significance of the first medical certificate;
70.3whether further medical certificates are required for each ongoing period of incapacity;
70.4CPA's reliance on McGowan, which CPA contends supports is position; and
70.5s 57A within the context of the balance of div 5.
Underlying purpose and textual considerations
The underlying purpose of s 57A is to set out a procedure for dealing with claims for compensation by way of weekly payments in a speedy and efficient manner.
As one of the three prerequisites for s 57A to apply, 'a claim for compensation by way of weekly payments for total or partial incapacity' must be made on an employer.[52] Thereafter, s 57A uses a number of different phrases referable to the claim for weekly payments - 'the compensation claimed': s 57A(2A); 'for which weekly payments are claimed by the worker': s 57A(2)); 'the weekly payments claimed': (s 57A(3), s 57A(3a)); 'a claim for weekly payments under this Act' and 'the weekly payments claimed': s 57A(5)); 'weekly payment or payments': s 57A(7), s 57A(8A) and s 57A(8)). It is therefore necessary to consider those subsections to see what textual considerations arise which may support the parties' respective contentions.
[52] Section 57A(1)(a).
Section 57A(2A) requires the employer, within five full working days of receipt of the Form 2B and Form 3, to claim on its insurance policy 'in respect of liability to pay the compensation claimed'. The phrase 'compensation claimed' suggests the amount is quantifiable. Where the employer does not make a claim under its policy within the five working day period, s 57A(2) allows the insurer to sue and recover from the employer any amount the insurer 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'. The phrase 'first 5 working days for which weekly payments are claimed' suggests the claim is referable to a particular period.
Section 57A(3)(b) and s 57A(3a)(b) address the scenario where the insurer disputes liability. They both use the phrase 'liability is disputed in respect of all or any of the weekly payments claimed'. The impression from these words is they are referable to a claim for a fixed period, as they refer to all or any of the definite phrase - 'the weekly payments claimed' (emphasis added). However, the phrase 'liability is disputed in respect of all or any of the weekly payments claimed' can also be consistent with Mr Papalia's interpretation. An insurer could accept liability for either all or any weekly payments in respect of a continuing claim for weekly payments, until such time as the payments would cease or reduce under other provisions of the legislative scheme. So, for example, an insurer could accept liability for the first two weeks of such a claim. Alternatively, an insurer could accept liability for all of the weekly payments, on the basis that, they will be reduced or come to an end if one of the subsequent events provided for by div 5 applies.
I do not see any textual assistance arises from the phraseology used in s 57A(5), s 57A(8A) and s 57A(8).
In respect of s 57A(7), the reference at s 57A(7)(b) to an Arbitrator having 'ordered the commencement of weekly payments under this subsection', in particular the word commencement, appears consistent with an interpretation that the claim is not for a closed period.
Form 3B requires the insurer to notify that liability is disputed in respect of either all the weekly payments claimed, or 'the following weekly payments claimed' and to then provide details. This again is consistent with a claim that could be for a fixed period, or for a continuing period.
Overall, I consider the textual considerations within s 57A do not definitively point in favour of one parties' particular interpretation. The language used does not demonstrably point to the claim being for a closed period, or to it being for a continuing period.
Significance of the first medical certificate
Pursuant to both s 57A and s 57B, a claim for compensation by way of weekly payments may be in respect of incapacity caused by the injury suffered, or may be for incapacity because of a recurrence of that injury. Both an initial claim and a recurrence claim require a medical certificate. As already explained, the medical certificate for an initial claim is prescribed as being Form 3. A recurrence claim can only be made where a Form 3 has previously been served. There is no prescribed form of medical certificate for a recurrence claim. If a recurrence claim certificate was only required to state what is set out in s 57A(1)(b)(ii) - to the effect that the worker is unfit for work because of a recurrence of an injury - it would not be possible to calculate the quantum of the weekly payments where the incapacity to work was partial only. Therefore, I think the better view is that the recurrence claim certificate should be substantially in the form of Form 3, modified to reflect that it is provided in respect of the recurrence of an injury for which a certificate has previously been provided. However, thankfully, I do not need to resolve that issue on this appeal.
The required medical certificate to initiate a claim pursuant to s 57A is likely to identify incapacity that is both historical and future. That is, given the medical certificate must be obtained after the injury arose, it is almost inevitable that the certified period of incapacity will include a historical period of incapacity.
Plainly, the information required by the medical certificate as to capacity is required for a purpose. Where there is partial incapacity, one of the purposes is to enable calculation of the applicable weekly payments. I consider an additional purpose is to provide the insurer (or the employer where the claim is brought under s 57B) with information to assist in the making of the decisions required by s 57A(3) (or s 57B(2)).
At the time the first medical certificate is provided, to the extent it addresses future incapacity, in most circumstances it will be predictive only. It is open to an insurer (or employer) to only accept liability in respect of a specified number of weeks, thus limiting its liability unless and until an Arbitrator orders to the contrary. It is also open to an insurer (or employer) to give notice that they are not able to make a decision in respect of a claim. Thus, the range of allowable responses accommodates the predictive nature of the certificate.
Are further medical certificates required for each ongoing period of incapacity?
On CPA's preferred interpretation, if it transpired that the worker's incapacity extended beyond that set out in the first certificate, the worker would need to make a new claim for each ongoing period of incapacity as certified by ongoing progress certificates. Such further claims would be for the continuing effect of the injury, which by its very nature is not a recurrence of the injury. In my view, neither s 57A, nor s 178(1)(b), envisage 'rolling claims' of this type to be made by the worker.
Section 57A envisages two types of claims – first, a claim arising from the initial injury; second, a claim where there is a recurrence of that injury. Section 57A does not envisage new claims being made for the continuation of the impact of the original injury, as opposed to the recurrence of that injury. If such were the case, the process provided for by s 57A(3) would need to be repeated each time a further medical certificate as to the continuing effect of the injury was provided. Such a process is not consistent with the purpose of s 57A, being the prompt resolution of a worker's claims. Furthermore, s 178(1)(b) speaks in terms of one claim for compensation being made in respect of the injury suffered by reason of an injury at work.
CPA's alternative position is that the claim period is delineated by the combined periods of incapacity set out in the initial certificate, further progress certificates and ultimately the final certificate. It seems to me that implicit in CPA's alternative position is that to the extent a worker's claim extends beyond the period of incapacity set out in the first certificate, the extended claim period must be supported by ongoing certificates of incapacity.
Putting to one side an injury recurrence claim, in my view, the legislative scheme does not envisage that a claim pursuant to s 57A must be supported by ongoing medical certificates to be provided by the worker, in addition to the certificate prescribed by s 57A(1)(b)(i). In respect of an injury recurrence claim, a further certificate is required by s 57A(1)(b)(ii). Otherwise, s 57A does not require the worker to provide ongoing certificates in respect of future continuing incapacity. Nor does s 57A prescribe a process by which this can occur.
Section 65 requires a worker receiving weekly payments to submit to medical examinations if so required by the employer or the employer's insurer. This results in either progress certificates of capacity (prescribed by reg 7A as being Form 4A) or a final certificate of capacity (prescribed by reg 7(1) as being Form 4). These forms are prescribed for the purposes of s 61 of the Workers' Compensation Act, which allows for the cessation of weekly payments upon, amongst other matters, certification by a medical practitioner that the worker has total or partial capacity for work and service on the worker of the 21 day notice required by s 61. Thus, the progress certificates and final certificate obtained pursuant to the operation of s 65 are prescribed for the purposes of an employer bringing a claim for weekly payments to an end, not as a condition of the worker being able to maintain their claim.
In contrast, s 69 of the Workers' Compensation Act provides that if a worker receiving a weekly payment does not reside in Western Australia, his entitlement to receive ongoing payments requires him to prove the continuance of the incapacity in respect of which the weekly payment is payable. Regulation 10(1) prescribes the form as being Form 6, which includes a medical practitioner's declaration as to the worker's capacity for work.
Having regard to these matters, in my view, the medical certificate required by s 57A is only required to initiate the claim. In my view, s 57A does not require the worker to serve on the employer further medical certificates for each period of incapacity additional to that prescribed in the first medical certificate, except where the claim is for a recurrence of an injury.
McGowan v Castrum Pty Ltd
During argument, CPA urged upon me that Justice Wheeler's reasons for decision in McGowan were to the effect that the medical certificate prescribes both the quantum of the weekly payments and the period for which they are claimed. After careful consideration of her Honour's reasons, I do not think that is correct.
It is useful to set out the entirety of [6] of her Honour's reasons, which I do below:
Second, subs (5) of s 57A gives the worker in relevant circumstances an entitlement 'to the weekly payments claimed'. One might be forgiven, reading that subsection, for concluding that there was some ascertainable sum to which the worker will automatically become entitled in the circumstances described. No doubt, that will be so where the relevant claim is one for total incapacity for work. Prescribed forms, to which I will turn in a moment, have a box, the ticking of which enables a medical practitioner to certify that a worker is totally unfit for work and it would normally be completed by certifying total unfitness from a particular date, either to an estimated date in the future or continuing indefinitely. The 'payments claimed' would be able to be calculated in accordance with the First Schedule to the Act, with relative ease. (emphasis added)
Where a worker is totally unfit for work, her Honour recognised that a certificate may certify incapacity either to an estimated date in the future, or continuing indefinitely. Her Honour then states (in the last sentence) that the '"payments claimed" would be able to be calculated in accordance with the First Schedule to the Act, with relative ease'. To my mind, the reference to the 'payments claimed' in the last sentence is a reference to the quantum of the weekly payments, not to their quantum and their duration. Self‑evidently, the quantum of a claim for weekly payments continuing indefinitely is not one capable of calculation with relative ease.
Furthermore, the language used by her Honour that a certificate would normally certify unfitness to 'an estimated date in the future or continuing indefinitely', reflects the predictive, and possibly uncertain, nature of the period of incapacity specified by the certificate.
CPA also relied upon [30] of her Honour's reasons, which I set out below:
However, the purpose of the certificate, under s 57A, is to enable the ascertainment of what are the weekly payments claimed. The expression 'the weekly payments claimed', referring back to the claim made in s 57A(1)(a), appears at a number of places in s 57A, including in s 57A(5). It is necessary, before s 57A(5) can be invoked, for it to be possible to ascertain from the medical certificate how those weekly payments are to be calculated. That can only be done where, in a case of partial incapacity, there is some indication of the nature of the incapacity for work (either in terms of a restriction upon the hours which can be worked, or restriction of duty, or both), so as to enable that calculation to be made. As I have noted earlier, the claim which is made pursuant to s 84I, and which is referred to in s 57A(1)(a), does not assist in that task, so the section must contemplate that it is from the medical certificate that one gleans an indication, not of the precise amount of compensation payable by way of weekly payments, but of the manner in which those payments can be calculated.
(emphasis added)
In my view, the phrase 'what are the weekly payments claimed' refers to the quantum of the weekly payments, not their duration. I think this is made clear from the last sentence of [30] where her Honour says:
… so the section must contemplate that it is from the medical certificate that one gleans an indication, not of the precise amount of compensation payable by way of weekly payments, but of the manner in which those payments can be calculated.
In this respect, I understand her Honour's reference to 'the manner in which those payments can be calculated' as being a reference to the quantum of the payments.
At [31], her Honour dealt with the medical certificate the subject of the case before her Honour, insofar as it applied to the period between 24 July1999 and 1 September 1999. Her Honour's comments at [31] must be read in the context of what her Honour says at [18], where her Honour refers to the parties accepting that the certificate was probably dated 14 October 1999 and ticked the box 'fit for restricted return to work from', filling in the date 1 September 1999. Her Honour says at [31]:
In relation to the period between 24 July 1999 and 1 September 1999, in my view, the certificate would be adequate if, read fairly and read, if necessary, together with the claim form provided pursuant to s 57A(1)(a), there was a clear certification that, during a defined period in respect of which compensation was claimed, the worker was totally unfit for work.
Understood in the context of the certificate being dated 14 October 1999, this reference is to the period prior to certificate, and not to the estimated ongoing future incapacity.
Accordingly, for these reasons, in my view, McGowan does not support CPA's contention.
Section 57A within the context of the balance of div 5
The interpretation of s 57A also must be considered against the context of the balance of div 5, in particular those provisions which address the cessation or reduction of weekly payments by an employer.
In Regis, the court stated at [48]:
An element of the statutory scheme is that once weekly payments have been commenced, an employer is not permitted to reduce or discontinue them other than as authorised by the Act.43
(FN43: Department of Education v Kenworthy (1990) 3 WAR 1, 17; Star Broken Meats (9) (Owen J).)
The reference at footnote 43 to Department of Education v Kenworthy is a reference to Justice Nicholson's decision. The then Chief Justice agreed with Justice Nicholson. Justice Nicholson said at page 17, line 45 that the evident scheme of the Workers' Compensation Act in relation to weekly payments assumes 'the entitlement to them has been established'. This is what I understand their Honours to be saying at [48] of Regis - the element of the statutory scheme there described assumes the entitlement to weekly payments has been established. By way of explanation, if an insurer accepts liability only for four weeks of weekly payments, in my view, the liability to make those payments is only established for those four weeks. If the worker seeks payments beyond the expiry of that four week period, the worker will need to make an application under one of the applicable provisions within div 5 for an order for the weekly payments to continue beyond such expiry. That is, it would not be incumbent upon the employer in those circumstances to rely upon one of the other provisions within div 5 to bring those weekly payments to an end.
Against this context, there are many avenues within the division by which an employer can seek to bring an end to, or reduce, weekly payments of compensation.
Pursuant to s 57A(5), the employer or the insurer may apply for a determination to be dealt with in accordance with s 57A(6) as to the worker's entitlement to the weekly payments. On the hearing of such an application, the Arbitrator may consider whether there is a genuine dispute as to liability and also consider the rate or period of time for the payments.[53] However, any such determination cannot effect the entitlement of the worker in respect of the period prior to that determination.[54] This is so, even where the worker wilfully misrepresented at the time of entering into employment the injuries he then suffered from.[55]
[53] Glover-Jackson Malcom CJ (11) – (12) (with whom Ipp and White JJ agreed).
[54] Glover-Jackson (11) ‑ (12) (Malcolm CJ).
[55] Glover-Jackson (12).
Pursuant to s 59, where a worker who claimed or is receiving weekly payments of compensation commences remunerated work with a new employer, upon request from the previous employer or its insurer, the worker is to provide particulars of that remunerated work.[56] The employer or employer's insurer may discontinue or reduce the worker's weekly payments in accordance with those particulars.[57]
[56] Section 59(5).
[57] Section 59(7).
Pursuant to s 60, where an employer satisfies an Arbitrator that there is a genuine dispute as to liability to pay compensation, or as to quantum, the Arbitrator may order that the payments be suspended or discontinued or reduced.[58] Where the effective deeming provision in s 57A(5) applies, any such order cannot affect the payments made prior to the order.[59] However, the employer may not invoke s 60 where s 61 is available to it.[60]
[58] Regis [47].
[59] Glover-Jackson (11) ‑ (12) (Malcolm CJ).
[60] Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992), 16 (Owen J with whom Pidgeon J agreed and Rowland J was in general agreement).
Section 61 permits an employer to discontinue or reduce weekly payments with the consent of the worker, under an order of an Arbitrator, upon the worker having returned to work or upon service of the notice and medical certificate contemplated by the section. I address separately below the proper interpretation of s 61.
Finally, s 62 permits an employer or a worker to apply to an Arbitrator to discontinue, reduce or increase the weekly payments having regard to the present or past condition of the worker.[61]
[61] Regis [47].
This recitation of the statutory framework within div 5 reflects that there are many avenues within the division by which an employer can seek to bring an end to, or reduce, weekly payments of compensation. The employer can dispute liability by acting under s 57A or s 60. The employer can also bring an end to or reduce the payments by reason of those matters provided for by s 59, s 61 and s 62, which are directed to events arising post the claim having been made.
In my view, the range of such avenues, and that they cover both a dispute as to liability and also events that arise post the claim being made, supports the view that a claim for weekly payments insofar as it relates to future incapacity is not constrained by the period of incapacity set out in the required initial medical certificate.
I appreciate a consequence of this view is that a worker may be fit for work, yet under the overall legislative scheme, remain entitled to weekly payments of compensation. However, such a result is consistent with the scheme overall. For example, pursuant to s 61 an employer can only discontinue or reduce payments upon certification by a medical practitioner that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury, where the employer first gives the worker 21 days prior notice. Thus, there is a 21 day grace period, even where there is medical certification of capacity. Further, where the notice or medical certificate given does not comply with s 61(1), the employer is not entitled to discontinue or diminish the payments.[62] Accordingly, the scheme itself does not have an effective guillotine regime mandating the immediate cessation of a worker's entitlement to weekly payments upon certification of a worker being fit for work.
[62] Heat Containment Industries v Kimberley (1990) 2 WAR 47, 58 (Rowland J, with whom the then Chief Justice generally agreed and Ipp J agreed).
Further, CPA submitted at [29] of its written submissions that:
It could not have been Parliament's intention to cause a claim for weekly payments for a period of weeks or months to be translated by the provisions of the [Workers' Compensation Act] into an entitlement to years of payments based only on a technical, and potentially minor, breach of notice requirements.
The scenario in this case where the breach of s 57A(3), and the consequent application of s 57A(5), was not appreciated until well after the alleged injury, is not one which would commonly arise. In my view, in approaching the task of statutory construction in this case, a Court has to be careful not to allow such an uncommon scenario to be the driver for the process undertaken, especially where the statute under consideration has such an extensive operation as does the Workers' Compensation Act. Rather, the construction ultimately arrived at must be undertaken in accordance with the principles I have earlier outlined at [16] ‑ [18].
The established interpretation of the legislative scheme recognises that a worker retains an entitlement to weekly payments in circumstances where the claim was at inception, or later became, unmeritorious. Specifically, as explained at [103] and [105], where s 57A(5) applies and an Arbitrator subsequently determines weekly payments should cease because of a dispute as to liability, the worker is entitled to retain the payments made prior to such determination. This is so even where the worker wilfully misrepresented their pre-existing injuries at the time of commencing employment. In addition, as explained at [110], a worker who may have recovered their capacity to work, still retains an existing entitlement to weekly payments unless and until the requirements of s 61 are engaged.
Further, an interpretation that a claim pursuant to s 57A(1) is subject to the other provisions within div 5 which provide for the reduction, suspension or discontinuance of the weekly payments, reduces the possible prejudice to an employer from the scenario presented in CPA's submissions. That is, div 5 provides for many avenues whereby such a claim is automatically brought to an end or diminished, and also provides for several avenues whereby an employer can apply to have the payments discontinued or diminished. This includes an application under s 57A(5) upon which liability for ongoing payments can be disputed.
Preferred interpretation
Having regard to the matters I have addressed, I consider the legislative scheme operates so as to require a medical certificate initiating the claim for weekly payments to certify both injury and an initial incapacity arising from the injury. Thus, the medical certificate is a first check that there has been an injury and incapacity arising from it. Once this first check is cleared, the claim itself is initiated. I consider the legislative scheme does not intend that this first check delineates the complete period for which weekly payments are claimed.
I consider that a result that a worker must make a new claim for each ongoing period of continuing incapacity, which result follows from CPA's primary position, is not consistent with the legislative scheme. I also consider the legislative scheme does not intend that a worker must in the ordinary course provide ongoing certificates of incapacity for each continuing period for which incapacity is asserted. As I have explained, in my view, s 57A does not require the worker to provide further certificates in respect of future ongoing incapacity, nor does it prescribe a process by which this can occur.
Further, where a worker establishes an entitlement to weekly payments, whether pursuant to s 57A or by order of an Arbitrator, there are varying different provisions within div 5 by which the employer can seek to have those payments suspended, reduced or discontinued. This can be directed to both a contest on liability and a change in circumstances arising from events post the initial claim.
Overall, having regard to these matters, in my view the preferred interpretation of s 57A is that a claim the subject of s 57A(1) is:
1.to the extent the medical certificate certifies a period of historical incapacity, a claim for weekly payments for that historical period;
2.where the claim is for partial incapacity, a claim whereby the quantum of the weekly payments is to be calculated by reference to the worker's capacity for work as specified in the certificate; and
3to the extent the medical certificate certifies a period of future incapacity, a claim for the commencement of continuing weekly payments for an indefinite period, subject to the other provisions within div 5 which provide for the reduction, suspension or discontinuance of those payments.
Accordingly, in my view, the medical certificates do not delineate the outer limit of Mr Papalia's claim for compensation by way of weekly payments pursuant to s 57A(1).
Section 57A(3)
In my view, the weekly payments claimed referred to in s 57A(3) must be a reference to the worker's claim for weekly payments the subject of s 57A(1). Section 57A(1) identifies the claims which are the subject of s 57A. Section 57A(3) prescribes how an employer's insurer is to respond to such claims. Section 57A(1) and s 57A(3) therefore must be referable to the same claim.
Further matters to now consider
Having determined what is the claim the subject of s 57A(1) and s 57A(3), I need to now consider whether the references in s 57A(5) to 'a claim for weekly payments under this Act' and 'the weekly payments claimed' refer back to the claim the subject of s 57A(1), or are referable to some different claim. The resolution of this issue affects whether a return to work impacts on Mr Papalia's claim.
Section 57A(5)
It is useful to set out s 57A(5) and s 57A(6) again in full:
(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.
Mr Papalia submitted in his written submissions that the claim for weekly payments in s 57A(5) is in effect a claim for payment until an order is made pursuant to s 57A(6).[63] The effect of this submission is those provisions within div 5 which provide for the reduction, suspension or discontinuance of weekly payments do not apply to the application of s 57A(5). During argument, when pressed on this issue, Mr Papalia's counsel contended that once s 57A(5) applied, the 'weekly payments claimed' referred to in that subsection were different to the weekly payments claimed the subject of s 57A(1).[64] I do not accept this submission for the following reasons.
[63] Mr Papalia's submissions, par 34(c).
[64] ts 57.
Section 57A(5) commences by referring to the circumstance where the insurer fails to comply with 'sub-section (3) in respect of a claim for weekly payments under this Act'. This strongly suggests the claim for weekly payments the subject of subsection (5) is the same claim to which the insurer is required to respond under subsection (3). Subsection (5) goes on to provide that where there is such a failure 'the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed'. This makes clear the claim spoken of must be a claim that already has been made. In my view, this must be a reference to the claim for weekly payments to which the insurer is required to respond under subsection (3), it being the claim referred to at the commencement of subsection (5).
In my view, the evident purpose of s 57A(5) is to give rise to a deemed admission where an insurer has not complied with s 57A(3). That is, s 57A(5) has the effect that where an insurer has not complied with s 57A(3), the insurer is deemed to have made an admission of liability in accordance with s 57A(3)(a).
Further, I consider the scheme of s 57A is that the reference to weekly payments claimed is to be consistent throughout. For example, if liability is accepted pursuant to s 57A(3)(a), that acceptance must be in respect of the weekly payments claimed the subject of s 57A(1). The effective deeming provision provided by s 57A(5) in my view must be in respect of the same subject matter, that is the weekly payments claimed the subject of s 57A(5). This is consistent with s 57A(7)(a) which stipulates the same process for the making of weekly payments where there is an acceptance of liability, and, where the insurer had not given notice within time.
Further, Mr Papalia's submission puts the operation of s 57A(5) in isolation to the rest of the Workers' Compensation Act, in particular div 5. This in effect is what the Arbitrator found. In coming to the conclusion that the fact of a return to work and a final medical certificate are not relevant factors to the operation of s 57A, the Arbitrator held that s 57A(5) 'appears to be a "stand‑alone" provision'.[65] The Arbitrator held that:
The legislature has set out only one process by which the worker's entitlement to weekly payments can otherwise be determined and that is an application under s 57A(5).
On that basis, even if Mr Papalia had returned to work, or that a final medical certificate was in fact issued, that does not appear to be a determining factor within s 57A(5) of the Act, until an application is made pursuant to s 57A(5) of the Act, when such matters can presumably be taken into account.[66]
[65] ARD [43].
[66] ARD [43] – [44].
I disagree that s 57A(5) is a stand alone provision. In my view, s 57A(5) must be construed, and operate, in the context of the division within which it appears. As explained above, that division contains a number of provisions which provide for the reduction, suspension or discontinuance of weekly compensation payments. These provisions include provisions directed to events which occur after the initial claim has been made. By way of example:
1.Pursuant to s 72(1), a worker's entitlement to weekly payments is suspended during any period that the worker is in custody, such suspension commencing from the date on which an Arbitrator certifies to the effect that the worker is in custody.
2.Pursuant to s 59, the employer or employer's insurer may discontinue or reduce the worker's weekly payments in accordance with particulars provided by the worker as to remunerated work with a new employer.[67]
[67] See [107].
Further examples are the payments reaching the prescribed amount referred to in Item 7(3) of sch 1, or the employee reaching the age limit prescribed by s 56.
It seems to me that Mr Papalia's approach to the interpretation of s 57A(5) is to the effect that the entitlement to weekly payments claimed continues irrespective of what subsequently occurs, unless an application is brought by the employer or the insurer under s 57A(5). However, in my view, the preferred interpretation is that the entitlement to weekly payments claimed is subject to those other provisions within div 5 which operate as a consequence of matters that occur or arise after the claim has been made.
If it were otherwise, the effect of Mr Papalia's submission is that the division would in effect have two schemes running within it:
1.where liability is accepted or an order made for weekly payments, the worker's entitlement to weekly payments is subject to those provisions which provide for the reduction, suspension or discontinuance of those payments; and
2.where s 57A(5) applies, the provisions which provide for the reduction, suspension or discontinuance of weekly compensation payments do not apply and the only basis upon which the worker's entitlement to weekly payments claimed ceases is on a determination made under s 57A(6).
In my view, such an interpretation is not consistent with the overall scheme of div 5. As one example, where a worker has returned to remunerated work with a new employer and provided particulars to this effect to the previous employer (against whom the claim is made), there is no apparent rationale which would require the previous employer to make an application to an Arbitrator to reduce or discontinue the compensation payments to a level consistent with the particulars provided by the worker. As a further example, where a worker is in custody, there is no apparent rationale why a worker who is in custody would not be subject to suspension of their entitlement pursuant to s 72, merely because s 57A(5) had been activated.
Mr Papalia in both written and oral submissions placed some emphasis on the decision in Glover-Jackson in support of the proposition that s 57A(5), once engaged, operates as a stand-alone provision. Specifically, Mr Papalia relied on the reasons for decision of Malcolm CJ at (11) ‑ (12), where his Honour stated that a determination under s 57A(6) of an application under s 57A(5) cannot affect the entitlement under s 57A(5) in respect of the period prior to the determination.[68]
[68] Glover-Jackson v G & M Construction Pty Ltd (11) - (12) (Malcolm J, with whom Ipp & White JJ agreed).
In my view, the reasons for decision in Glover-Jackson are directed to the entitlement to the weekly payments claimed, not to the characterisation of that claim. It is the entitlement under s 57A(5) which cannot be affected by a determination under s 57A(6). However, the entitlement still remains an entitlement to the weekly payments claimed. In my view, the weekly payments claimed as referred to in s 57A(5) are those the subject of s 57A(1). Therefore, they are subject to those other provisions within div 5 which operate as a consequence of matters that occur or arise after the claim has been made. I do not read Glover-Jackson as characterising the weekly payments claimed the subject of s 57A(5) as being of a different character to those the subject of s 57A(1).
For these reasons, in my view Glover-Jackson does not support Mr Papalia's position.
Accordingly, in my view, the proper interpretation of s 57A(5) is that the entitlement there referred is subject to those provisions of the Workers' Compensation Act which provide for the reduction, suspension or discontinuance of weekly compensation payments arising from events subsequent to the claim being made. It therefore includes the operation of s 61 of the Workers' Compensation Act.
Return to work
Section 61 permits an employer to discontinue or reduce payments where, relevantly, the worker has returned to work. The phrase 'return to work' is defined in s 5(1) of the Workers' Compensation Act.
CPA contends Mr Papalia returned to work on 18 May 2016. Mr Papalia does not accept he returned to work.[69] This appeal is not concerned with the issue of whether, in fact, Mr Papalia returned to work. Rather, the issue is whether if Mr Papalia did in fact return to work, his entitlement to weekly payments ceased upon such return. The Arbitrator held it did not and that a return to work was only relevant in the context of an application for arbitration brought by CPA in accordance with s 57A(5).
[69] Arbitrator's reasons, page 12, [36].
Mr Papalia's primary position was that an alleged return to work is only relevant on the determination of an application made by the CPA under s 57A(5). I have found against Mr Papalia on this issue, having found at [122] ‑ [136] that the proper interpretation of s 57A(5) is that the entitlement there referred is subject to those provisions of the Workers' Compensation Act which provide for the reduction, suspension or discontinuance of weekly compensation payments arising from events subsequent to the claim being made. Therefore, it is subject to s 61.
In oral submissions, Mr Papalia submitted as a secondary position that even if s 57A(5) was subject to s 61, in the circumstances of this case, s 61 has no arguable application. This submission relies on the introductory words of s 61(1) - '…where weekly payments of compensation for total or partial incapacity are made under this Act, they shall not be discontinued or reduced without …'. Section 60(1) contains similar introductory words in permitting an employer to apply to an Arbitrator for an order that weekly payments be discontinued or reduced.
Mr Papalia submits that as CPA was not paying weekly payments of compensation to him, s 61 does not apply.[70] The effect of this submission is where a worker is being paid weekly payments, the worker's entitlement to those payments ceases upon a return to work. However, if the employer is liable to make weekly payments but is not doing so, the worker's entitlement to the payments is not affected by a return to work unless the employer obtains an order from an Arbitrator to that effect.[71]
[70] ts 55.
[71] Mr Papalia's counsel accepted this was the effect of the submission at ts 55.
On the literal wording of s 61(1) (and s 60(1)) it applies, as Mr Papalia submits, 'where weekly payments of compensation … are made'. However, this section must be read in the context of the legislative scheme as a whole. The scheme is intended to provide the worker with compensation by way of weekly payments when the worker is not working, and thus not earning remuneration. In my view, a result that a worker who has returned to remunerated work, yet remains entitled to receive compensation by way of weekly payments after such return, is not consistent with the legislative scheme. In effect, it would result in a worker who has returned to work being compensated twice for their services, that is, by way of their ordinary wages and further, by way of compensation under the Workers' Compensation Act.
In my view, the proper interpretation of s 60(1) and s 61(1) is that the phrase 'weekly payments are made' incorporates 'or liable to be made'. Otherwise, the availability of the processes afforded by those sections would be dependent upon the employer being compliant with its obligations to make payments under the Workers' Compensation Act, which itself could be a matter of dispute. In my view, the sections are not intended as de facto enforcement provisions such they can only be availed of where the employer demonstrates they are not in default of their obligations to make weekly payments.
Accordingly, in my view, if CPA can establish that Mr Papalia returned to work within the meaning of s 61(1), CPA was entitled to discontinue weekly payments upon such return and Mr Papalia's entitlement pursuant to s 57A(5) thereby ceased upon that return. Thus, a return to work is a relevant consideration on Mr Papalia's application.
In coming to this view, I have considered whether s 61(1) requires a 21 day notice to be given where a return to work is relied upon. There appears to be a difference of opinion in the authorities on this issue.
The reasons for decision in Regis at [47] suggest a 21 day notice is required to be given by the employer to the worker both where the employer relies upon a medical practitioner having provided the required certification, and also where the employer relies upon the worker having returned to work.
However, this is to be contrasted with the decision of Rowland J in Heat Containment Industries v Kimberley, with whom the then Chief Justice generally agreed and Ipp J agreed. The effect of the reasons of Rowland J at (57) is that the giving of the 21 day notice prescribed by s 61(1) is not required where the worker has returned to work.[72] This does appear consistent with the wording of s 61(1), which refers to the employer serving on the worker the required medical certificate 'together with at least 21 clear days' prior notice …'. It is also consistent with the prescribed form for giving notice under s 61, being Form 5, which refers only to the medical certificate, and not to a return to work.[73]
[72] See also Taylor v Star Broken Meats (9) (Owen J), which is consistent with the view expressed by Rowland J in Heat Containment.
[73] The form is prescribed by reg 7(2).
I do not need to resolve the issue on this appeal, as Mr Papalia's counsel accepted that a 21 day notice pursuant to s 61 was not required where there was a return to work.[74]
[74] ts 54.
A return to work does not however mean that Mr Papalia's rights to claim compensation for weekly payments arising out of his injury ceased upon such return. If after such return (if that is found to be the case), Mr Papalia was unfit for work because of a recurrence of his injury, it was open to him to make an injury recurrence claim in accordance with s 57A(1)(b)(ii). The ability to make such a further claim reinforces me in my view that a return to work would bring about the cessation of the existing claim. The legislative scheme recognises the difference between a claim in respect of the period up until a worker returns to work (the initial claim) and a claim arising from an injury recurrence post such return (the recurrence claim).
I should also add that CPA did not give to Mr Papalia any notice under s 61 relying on the Final Medical Certificate as a basis for discontinuing weekly payments. Accordingly, it is not open for CPA to rely on the operation of s 61 in respect of the Final Medical Certificate.
One final matter
I wish to raise one final matter. It was not argued before me whether on an application for arbitration pursuant to s 58 of the Workers' Compensation Act, the Arbitrator has any discretion as to the orders which ought be made where the worker is seeking to enforce an entitlement arising under s 57A(5). I therefore have not considered whether any such discretion arises, or how it ought be exercised.[75]
[75] As an example of where a discretion may arise, in Qantas Flight Catering v Joncevski [2004] WASCA 121, Murray J (with whom the other members of the Court agreed) held at [21] that there is ample power under s 61(4)(c) to tailor an order to prevent injustice to an employer by way of double dipping by the worker.
Conclusion
For these reasons, I grant leave to appeal and allow the appeal in part. As the matter was argued differently before me than before the Arbitrator and having regard to the Appeal being in respect of a preliminary issue, I consider it is appropriate that I set aside the Arbitrator's answer to the second preliminary issue and substitute a replacement answer.
I determine the second preliminary issue as follows:
1.If Mr Papalia in fact returned to work as that phrase is defined by s 5 of the Workers' Compensation Act, CPA was entitled to discontinue weekly payments upon such return and Mr Papalia's entitlement pursuant to s 57A(5) thereby ceased upon such return.
2.The certification in the document described as the Final Medical Certificate that Mr Papalia had capacity for work from 18 May 2016 does not set the end date for Mr Papalia's claim for compensation by way of weekly payments pursuant to s 57A. Further, the certification in the document described as the first certificate of capacity that Mr Papalia had no capacity for work from 13 March 2016 to 21 March 2016 does not delineate the period of Mr Papalia's claim for weekly payments.
I will hear from the parties as to the precise form of the orders to be made.
Having regard to s 267(1) of the Workers' Compensation Act, my preliminary view is that I should make no order as to costs, however, I will hear from the parties on that issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Orderly19 DECEMBER 2019
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