In Chapels on Whatley v Bedford  WADC 129, His Honour Judge O'Neal (O'Neal DCJ) of the District Court of Western Australia affirmed the existing caselaw principles regarding proof of an entitlement for partial incapacity and disagreed with an Arbitrator's attempts to find a way around them by making some unusual orders.
By way of factual background:
- The respondent worker was originally employed in 2011 as a general manager at the appellant's café.
- She suffered injuries in a motor vehicle accident in 2011 and returned to work in May 2011 in a lesser role on a part time basis.
- In March 2012 she again took up the position of general manager for the appellant.
- In the course of that role she was involved in a work accident on 28 December 2012, described as the "loft incident".
- Following the loft incident she returned to work and the Arbitrator found that she returned working for just 5 hours a day, although O'Neal DCJ stated that finding must be in doubt given the evidence (which was unclear).
- She made a claim for workers compensation for the loft incident on 21 January 2013.
- On 6 February 2013 she sustained another accident at work, described as the "barrel incident", for which no claim has been made.
- The worker was made redundant two days after the barrel incident.
The worker's claim was always one for total incapacity, not partial incapacity.
Nevertheless, Arbitrator Holyoak-Roberts made the following orders:
- " The Respondent is liable to pay the Applicant forthwith:
- weekly payments of compensation for total incapacity from 31 December 2012 to 1 January 2013;
- weekly payments of compensation for partial incapacity from 16 February 2013 onwards.
- If the parties cannot agree, there is liberty to apply as to costs and quantification of the above orders."
The appeal by the employer primarily challenged the power of the Arbitrator to make the orders in 1(b) and 2.
A report from the worker's general practitioner was to the effect that she had been, and was still, partially incapacitated. The possibility that there could be a finding in favour of the worker for less than total incapacity arose for the first time in the course of closing submissions before the Arbitrator and was opposed by the employer when it was raised by the Arbitrator.
In his judgment, O'Neal DCJ stated [at paragraph 17]: "Given the nature of the medical evidence it was a fairly courageous decision on the part of the [worker's] legal representatives to not advance an alternative claim for partial incapacity. There may of course have been forensic reasons for not doing so, apart from the potentially embarrassing inconsistency in those two positions."
He found that there was no evidence as to what the worker was capable of earning, even on a part time basis, in other positions that she was capable of performing.
The employer was granted leave to appeal. There were eight grounds of appeal, the main one of which was that the Arbitrator erred in law in ordering payment for partial incapacity without any evidence that her "total weekly earnings" would exceed the "weekly amount".
The employer relied on the cases of Westralian Farmers Co-operative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989) and Mitchell v Canal Rocks Beach Resort  WASCA 331 in support of the proposition that the worker must prove:
- that she was partially incapacitated for the period of time contended; and
- what she earned or was able to earn in some suitable employment or business during that period, and that this was less than her pre-accident earnings.
Given that the worker did not adduce evidence of her weekly earnings, O'Neal DCJ stated [at 36] that: "In the circumstances it is puzzling, to say the least, that the arbitrator determined to find the [employer] liable to forthwith pay the [worker] weekly payments of compensation for partial incapacity".
The worker's submission in response to the main ground of appeal was that: "the present application for leave to appeal and appeal are premature in that in real terms the application before the arbitrator remains live with both parties having the opportunity to lead evidence and make submissions on the issue of quantum of payments (if any)." The submissions also emphasized the Arbitrator's discretion in such matters.
O'Neal DCJ noted that the worker's submissions did not deal with the binding authorities of Bunce and Mitchell and stated [at 39]: "That would appear to be because there is no answer".
He held that the Arbitrator was plainly wrong to make the orders that she did and he allowed the appeal on this ground. The parties agreed that if he was to allow the appeal on this ground that it was unnecessary to deal with the remaining grounds.
The decision reinforces the longstanding case law principles concerning the need for workers to strictly prove their entitlement to partial incapacity.
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