In The State Of Western Australia (Department Of Education) v Leek WADC 10, the respondent worker, Ms Leek (L) sustained an injury to her spine when she threw a bag of rubbish into a skip bin, while working for the appellant employer, the Department of Education (DOE). Liability was admitted and weekly payments commenced.
She was reviewed by a number of practitioners, including Neurosuregon, Mr John Liddell, who believed that she would be capable of performing modified duties. However, at this point, L stopped responding to the DOE which halted any progress in the matter. The DOE had written to L five times about seeing Mr Liddell without response.
As a consequence of L’s failure to respond, the DOE lodged an application seeking an order pursuant to s.156B that L participate in vocational rehabilitation. Although L did not respond or appear at the WorkCover proceedings, the application ultimately failed as the arbitrator was not satisfied that the DOE had proved that L had no reasonable excuse.
Several months later, the DOE made another application pursuant to s.60 of the Act to suspend weekly payments on the grounds that there was a genuine dispute as to its liability to pay compensation. In particular the DOE submitted that, L had failed to participate in an approved rehabilitation program, failed to attend medical appointments and was suffering from non-work related factors that were now contributing to incapacity. The DOE contended that L had failed to mitigate her loss and that her conduct prevented a proper assessment being made of her capacity for work.
L also failed to attend this conciliation conference, did not lodge a reply to the arbitration application (despite being personally served) and did not attend the directions hearing. As a result, the registrar ordered that the application be determined on the papers.
Once again it was held that the dispute raised by the DOE, was not genuine on the basis that:
- That the DOE fundamentally misconceived the relationship between failure to mitigate and causation in relation to L not participating in rehabilitation;
- There was no evidence to support the conclusion that L was aware that medical reviews had been arranged; and
- The DOE’s proposition about non-work related factors was speculative and did not, in any event, eliminate the injury as a cause of incapacity.
District Court Appeal
The DOE appealed the decision on the basis that the registrar erred in:
- Finding that there was not a genuine dispute;
- Holding that the doctrine of mitigation of loss did not apply;
- Holding that the doctrine of precedent did not require him to follow the decisions of compensation magistrates or the Dispute Resolution Directorate; and
- Holding that the DOE could not bring an application under s 60 to suspend weekly payments without having first exhausted all alternative statutory remedies against L.
L failed to file a Form 8 and did not attend any case management hearings. As a result, L was not entitled to take part and was not a party to the appeal for the purposes of District Court Rules 2005 r 53(6).
In the District Court, His Honour found that the registrar erred in concluding that the employer’s dispute was based on feeble legal arguments which he considered to be misconceived.
The DOE had attempted to discharge its obligation to L, but was prevented from doing so by her refusal to communicate or cooperate. Further, The DOE was unable to serve a s 61 notice and did not have the updated medical evidence to pursue a s 62 application as there was no current medical evidence to demonstrate L ‘past or present condition’.
Being satisfied that a genuine dispute does exist, His Honour ordered that weekly payments be suspended from the date on which that order ought to have been made, namely, 2 July 2013, until such time as an order for weekly payments is made by an arbitrator on the application of the worker.
Although this decision is authority for the proposition that a worker must mitigate their loss through rehabilitation, it really demonstrates that, regardless of whether a respondent appears in a matter, a strong case still needs to be put forward by an applicant or appellant.The decision also highlights the significant obstacles an employer faces in stopping a worker’s entitlements. L stopped responding to the DOE and failed to participate in rehabilitation in late 2011, yet a final determination was not made in favour of the DOE until February 2014.
For more information on this update or any other workers’ compensation matters please contact Ashley Crisp on (08) 9321 3755.
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