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
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
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
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
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
Finding that there was not a genuine dispute;
Holding that the doctrine of mitigation of loss did not
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
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
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.
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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