Section 61 Notices and the WA Workers Compensation and Injury Management Act

Mirrabooka/Nollamara Car Transport (appellant) v Rintoul (respondent) [2016] WADC 58
District Court of Western Australia – Judge Schoombee
Appeal from a decision of Arbitrator East of the Workers’ Compensation Arbitration Service (WA)

This appeal concerns a decision of an Arbitrator not to discontinue weekly payments of workers compensation to the respondent worker (worker) based on a section 61 notice issued by the appellant employer (employer).

The worker, who was a truck driver, suffered an injury to his neck and back after he fell from a truck/trailer during the course of his employment in October 2013. Liability was accepted for the claim. In October 2014 the worker was served with a notice under s 61(1) of the Workers’ Compensation and Injury Management Act 1981 (the Act) stating an intention to discontinue weekly payments.

The section 61 notice was based on reports of Dr Meyerkort of May 2014 and September 2014 in which he offered the view that the worker’s incapacity was no longer a result of the injury. The worker disputed the notice and applied under section 61(3) of the Act for an order that his weekly payments not be discontinued.

The matter was heard by the Arbitrator in June 2015 who found the worker’s incapacity continued to result from the injury. The Arbitrator was also of the view that they need only decide the issue raised in the s 61 notice i.e. that weekly payments be discontinued and not an alternative argument that weekly payments be reduced.

In her reasons for decision Her Honour Judge Schoombee stated “Once leave to appeal has been granted, this court must undertake a ‘real review’ of the application before the arbitrator, but is limited to the materials before the arbitrator. It is not a hearing de novo. Before this court may disturb the arbitrator’s decision the appellant must establish some error, either of fact, law or logic: Pacific Industrial Co v Jakovljevic [2008] WASCO 60 [20] and [26]. The grounds of appeal relied upon by Mirrabooka/Nollamara Car Transport are that the arbitrator erred in law in firstly, failing to properly interpret and apply the provisions of s 61 of the Act and, secondly, in failing to provide any or adequate reasons for her decision. In amplification of the first ground the appellant essentially stated that the arbitrator:

  1. did not undertake an examination of the ‘overall merits’ of Mr Rintoul’s entitlement to workers’ compensation and did not consider the extent to which he retained some capacity for work;
  2. did not consider whether Mr Rintoul was still incapacitated at the time of the s 61(1) notice;
  3. erred when she held that the employer carried the burden of proof that the payments should be discontinued or reduced as the employer had made that assertion in the s 61(1) notice;
  4. erred when she held that the employer carried the burden of proof to show a novus actus, or break in the causal chain, between the current incapacity and the work injury; and
  5. erred when she held that the only issue to be decided was whether Mr Rintoul’s continuing incapacity was the result of the work injury (which he had a burden to prove), when the correct issue to consider was what Mr Rintoul’s current extent of incapacity was and whether the work injury was a material contributing cause to this incapacity (which Mr Rintoul had the burden to prove).”

As to the issue/s to be decided which formed the main ground of the appeal Her Honour found “In my view the arbitrator’s right to determine the degree of the worker’s incapacity under s 61(4)(a) only has application where the notice under s 61(1) refers to the employer’s intention to reduce the weekly payments by a particular amount.” She also found “In my view the arbitrator did not err when she held that she was limited by the s 61 notice to decide whether Mr Rintoul’s ongoing incapacity was causally linked to the work injury. It is clearly a requirement of s 61(1) that the employer state in the notice whether it intends to discontinue the weekly payments or reduce them and to what amount.” and “I have already found that the issue whether Mr Rintoul retained a partial capacity to work was not a matter before the arbitrator, and the question who carried the burden of proof to establish Mr Rintoul’s reduced level of capacity, in what occupation he could work and for what wage therefore did not arise.”

The decision also contains a very interesting and informative discussion as to who should bear the burden of proof in section 61 notice hearings – “The difficult question with regard to s 61 is: who is the party who asserts? It is the employer who serves a notice under s 61(1) stating that it intends to discontinue or reduce the weekly payments and who provides an accompanying medical certificate which states either that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury. It is therefore the employer who makes certain assertions.

The worker may either accept the discontinuance or reduction of his payments or may make an application under s 61(3) for an order of an arbitrator that the weekly payments should not be discontinued or reduced. Does such an application mean that the worker makes the contrary assertions, namely that he is either totally incapacitated or partially incapacitated to a greater extent than certified by the employer’s medical practitioner or that his incapacity is still the result of the injury?” and “In my view, there is no apparent reason why the burden of proof should be different between a situation where an employer makes an application for a review of the weekly payments under s 62 and where it is called upon to prove its assertion made in a s 61(1) notice and accompanying medical certificate that payments should be discontinued or reduced. It is after all the employer who asserts in the medical certificate that the worker has regained total capacity to work or at least partial capacity or that his ongoing incapacity is no longer the result of the work injury.

Other than the fact that it is upon the worker to make an application to the arbitrator under s 61(3) if he or she does not accept the notice and certificate, the worker does not apply to change the status quo which he or she has established by the original application for weekly payments.”

The employer’s appeal was dismissed.

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