The WA District Court recently heard an appeal from a WorkCover
WA decision in Nadarajamuthali v Community Enterprises
Australia Limited  WADC 192.
The appellant, Mr Nadarajamuthali (N), suffered serious injuries
after a vehicle in which he was travelling collided with a road
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 to 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  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
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
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
The decision also highlights the importance of workers providing
medical evidence for all periods of incapacity they claim.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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