When it Comes to Workers Compensation, When is a Travelling Expense Not a Travelling Expense? Battle of the Clauses

David Briggs, a registered nurse, injured his left shoulder when assaulted at work in 2016. Liability was accepted and in February 2017, he drove from South Hedland to Perth and back to see a doctor, for an impairment evaluation. He claimed the travelling expenses associated with the trip from his employer, but the decision of the arbitrator was that he was not entitled to such expenses.

He appealed and submitted that his employer was obliged to pay his vehicle’s running expenses, together with meals and accommodation in the sum of $1,996.08.

When he went to Perth for the assessment, he did so to preserve his common law entitlement under Section 93L Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

He relied on Clause 19(3A) of Schedule 1 of the Act to cover his expenses whereas his employer argued Clause 17(1aa) applied.

Clause 19(3A) provides that where a worker travels to have impairment assessed by an AMS the employer is liable to pay vehicle running expenses, reasonable fares and expenses and the reasonable cost of meals and lodging. Clause 17(1aa) provides that a worker can only claim certain specified expenses for a first assessment or an attempted assessment for the purposes of Section 93L (which this was) but not including the cost of any travel, meals, or lodging.

Although there is an apparent inconsistency between the two clauses, Clause 17(1aa) is confined by its express wording to expenses arising from a Section 93L assessment while Clause 19(3A) deals with any case where a worker travels for an impairment assessment by an AMS, but is not limited to Section 93L assessments. Clause 19(3A) is therefore wider in its potential application than Clause 17(1aa).

In order to resolve the issue, His Honour Troy DCJ applied Section 18 Interpretation Act 1984 (WA) and the principle stated in Commissioner of Police v Eaton (2013) 252 CLR 1:

statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.

Troy DCJ also referred to Barker v Edger [1898] AC 748 at 754 and noted:

when the legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.

Troy DCJ noted in March 2009, the Minister for Commerce supported WorkCover WA undertaking a review of WA’s workers’ compensation legislation. The December 2009 report (written in part by Kott Gunning Partner Ashley Crisp), noted the Act did not specifically provide for payment of expenses for impairment assessments for other purposes under the Act (i.e. permanent impairment), but that Clause 17(1aa) was never amended.

Clause 19(3A) expressly contemplates the payment of travelling expenses where a worker travels to have impairment assessed by an AMS. There are a number of reasons for such an assessment, including attendances for the purposes of Section 93L common law assessments. Clause 17(1aa) provides for entitlements in circumstances where a worker seeks to protect or pursue common law rights under Part IV of the Act and in doing so expressly excludes travel expenses. Clause 17(1aa) prevailed as it was a specific provision relating to Section 93L assessments as opposed to a general provision like Clause 19(3A).

His Honour therefore upheld the arbitrator’s dismissal of Mr Briggs’ application.

Read Briggs v WACHS – Pilbara (Hedland Health Campus) 2018 WADC 73

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