Confirming the Scope of Section 61 Applications in the WA WorkCover Jurisdiction


WALSH v FORTESCUE METALS GROUP LTD [2016] WADC 140

This decision was the result of an appeal to the WA District Court from a decision of a WorkCover WA Arbitrator.

The appellant, Mr Walsh, sustained a left arm injury in the course of his employment in March 2014. The first medical first medical certificate described the injury as a left arm injury with a diagnosis of a ruptured long head of left biceps.  The employer admitted liability for a “left biceps strain.”

The employer subsequently served a section 61 notice in June 2015 based on medical reports of Dr White who offered the opinion that Mr Walsh had made a total recovery from the work place incident. Dr White also expressed the opinion that any left shoulder symptoms were not related to a work-related injury.

It was not contested by the parties that Mr Walsh had a degenerative left shoulder condition which included tears to his rotator cuff tendons, and in July 2015 he underwent surgery to repair a torn tendon of the left shoulder as well as his bicep injury, and he remained certified as unfit for work following this surgery.

Mr Walsh filed an application at WorkCover WA pursuant to section 61 challenging the employer’s right to discontinue weekly payments. He also sought an order that the employer pay his statutory allowances, including recent surgery.

During the WorkCover proceedings the parties filed conflicting medical evidence as to whether the shoulder condition had become symptomatic in March 2014 during the same incident as the left biceps.

The matter proceeded to an Arbitration hearing in December 2015 and the Arbitrator dismissed Mr Walsh’s application that his weekly payments of compensation not be discontinued.  In doing so, the learned Arbitrator found that whether Mr Walsh suffered an injury to his left shoulder, as alleged, at the same time as he suffered the left bicep injury could not be determined under a section 61 application.

The Arbitrator determined the application on the basis that it was confined to whether Mr Walsh was entitled to ongoing weekly payments of compensation in respect of the injury to which the employer had admitted liability only, namely the bicep injury, and expressed his view that consideration of any other alleged injuries was immaterial for the purposes of the dispute.

Mr Walsh appealed from the decision to the WA District Court.

In considering the appeal His Honour Judge Herron considered whether the learned Arbitrator erred in law by misconstruing s 61(1) and by misdirecting himself as to the issues he had to determine under s 61(1). His Honour found there is no power under section 61 to determine whether a worker has suffered an injury for which the employer may be liable for, as section 61 is only concerned with liability to make ongoing weekly payments for incapacity in respect of an injury for which liability has already been established.

His Honour also found that the Arbitrator had not erred in finding that liability for the alleged left shoulder injury could not be determined in the proceedings as liability for the alleged left shoulder injury had not been admitted and it remained open for Mr Walsh to establish the employer was liable to pay compensation for that injury; but this could not be determined under of the section 61 application.

Accordingly, the appellant’s appeal was dismissed. The decision confirms previous authorities relating to the scope of section 61 applications and serves to remind us that proceedings under section 61 are not proceedings at large taking into account matters, issues and contentions relating to liability for injuries for which liability has not been established.

For more information on this paper please contact partner Ashley Crisp or associate Henrik Eklund on (08) 9321 3755.

The information published in this paper 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.