The Approach to “Total Incapacity” in Workers’ Compensation Claims


The WA District Court recently heard an appeal from a WorkCover WA decision in Nadarajamuthali v Community Enterprises Australia Limited[2013] WADC 192.

The appellant, Mr Nadarajamuthali (N), suffered serious injuries after a vehicle in which he was travelling collided with a road train.

N claimed that his injuries were sustained in the course of his employment and sought a determination of liability, along with past weekly payments and ongoing statutory allowances.

The respondent employer denied the claim, contending that N’s conduct was contrary its policies and procedures and as such, he had not sustained a compensable ‘injury’ defined in s 5(1) of the Act.

After the hearing at WorkCover WA, Arbitrator Nunn dismissed the application on the basis that N could not prove total incapacity at the time of the hearing or for the entire period claimed.

N appealed to the District Court under s 247 of the Act on the basis that if the Arbitrator was not satisfied as to his total incapacity as at the date of the hearing, he could only dismiss the application if it was accepted that there was no total incapacity for any period(s) prior to that date.

He contended the Arbitrator therefore erred at law in finding that because the application was one for continuing payments he was unable to award any payments at all.

At the appeal, N’s counsel confirmed that the claim was for total incapacity from 11 December 2011. However, N had only provided progress medical certificates for certain dates within of the claimed period of incapacity and none during 2011.

The employer contended that, for him to be entitled to weekly compensation payments based on total incapacity, evidence would be needed that he could not perform any alternate duties and that there was no suitable employment available within the meaning of clause 7(2) of the Act (Mitchell v Canal Rocks Beach Resort [2002] WASCA 331).

N’s medical reports did not advance an opinion as to his fitness to work in any other vocation or did not make reference to his work and qualification history or his fitness to work in any particular capacity.

After hearing the appeal His Honour concluded that the Arbitrator had articulated the appropriate principles which governed the consideration of an applicant’s claim for compensation based on total incapacity, but that the Arbitrator did not make a specific finding that there was no period as and from 11 December 2011 during which he was satisfied that the appellant was totally incapacitated.

For example, it was obvious that N was totally incapacitated in the weeks directly following his car accident.

His honour therefore decided that the Arbitrator was in error by not making such a finding and allowed the appeal.

His Honour was, however, not prepared to make a determination as to whether N had in fact proved total incapacity, and if so, for what period. He therefore ordered the matter to be remitted to the Arbitrator to make a finding in accordance with his judgment.

This decision is authority for the proposition that Arbitrators should carefully consider the making of orders as to individual periods of incapacity when an applicant cannot prove a total period of incapacity.

The decision also highlights the importance of workers providing medical evidence for all periods of incapacity they claim.

For more information on this article or any other insurance matters please contact Ashley Crisp or Ken Grunder on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.