Australia: Interaction between section 60 and section 61 in the WA Workers Compensation Scheme - appeal to District Court and then to Court of Appeal, WA Supreme Court

Last Updated: 2 May 2018
Article by Ashley Crisp



Concerning weekly payments of compensation, the Employer applied by s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) to discontinue or reduce payments. Question whether the employer could have invoked s 61 of the Workers' Compensation and Injury Management Act 1981 (WA).

The Employer sought leave to Appeal against a decision of His Honour Parry DCJ dismissing an appeal against the decision of a WorkCover WA Arbitrator made under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

Section 60 of the Act allows an Arbitrator to discontinue or reduce weekly workers compensation payments. The Arbitrator and His Honour Parry DCJ found the employer could not rely on section 60 of the Act and said the employer's proper remedy was by using section 61 of the Act.

On Appeal to the Court of Appeal of the Supreme Court of WA the employers Appeal was upheld.

The worker, a nurse, injured her right hip injury on 28 June 2013 while manually handling a patient. The employer, via its insurer, admitted liability and weekly payments commenced.

On 10 June 2016, the employer sought an order for suspension of the respondent worker's weekly payments, relying on section 60 of the Act stating there was a genuine dispute as to liability to pay compensation to the worker by reason of an alleged failure of the worker to mitigate her loss as she did not retrain in phlebotomy.

At the Arbitration hearing at WorkCover WA the worker disputed the employer's application was competent and asserted the proper course would have been for the employer to issue a section 61 Notice, and in the alternative, the worker denied she had failed to mitigate her loss.

The Court of Appeal outlined at some length the relevant statutory provisions which laid out the frame work of the provisions under consideration and other relevant sections of the Act.

The Court of Appeal examined the Arbitrator's decision and stated –

"26 Consequently, the arbitrator dismissed the employer's application without dealing with the merits of the question of whether there was a genuine dispute regarding whether the worker had failed to mitigate her loss such that weekly payments should be discontinued."

Following the Arbitrator's decision the Employer appealed to the District Court on two Grounds –

  1. The Arbitrator erred in law in finding that there was not a genuine dispute as to liability pursuant to s 60 of the [Act].
  2. The Arbitrator erred in law in dismissing [the employer's] application on the basis that it was open for [the employer] to:
    1. issue a notice pursuant to s 61 of the [Act]; and
    2. issue an application pursuant to s 62 of the [Act].

In the District Court the learned Judge concluded and found the employer's application was not competent under s 60 of the Act and should be refused on that basis.

The Employer then appealed to the Court of Appeal of the Supreme Court on three grounds –

  1. The primary judge erred in law in finding that s 60 of the Act did not apply on the basis that s 61 of the Act applied instead.
  2. The primary judge erred in law in wrongly determining that s 61 of the Act applied, when there was no legal or factual basis for so holding.
  3. The primary judge erred in law and denied the appellant natural justice in determining the appeal without considering a report of Mr Hill, consultant orthopaedic surgeon, dated 9 March 2016.

At 56 the Court of Appeal stated –

"In our respectful view, for the reasons that follow, it was not open to the primary judge to conclude, as he did, 52 that, in the present case, 'a medical practitioner has certified ... that the incapacity is no longer a result of the injury'."

And at 64 –

"Thus, Mr Hill's report cannot be said to have been a certificate that the incapacity is no longer a result of the injury. Moreover, nothing in Mr Hill's report indicated that, with appropriate further questions, Mr Hill would certify to that effect. That being so, s 61 was not available to the employer."

The Court of Appeal stated grounds 1 and 2 of the Appeal must be upheld and in the circumstances it was unnecessary to deal with ground 3, and that at 69 –

"It is in the interests of justice that leave to appeal be granted. The effect of the primary judge's decision, if left unreversed, is that the merits of the employer's application under s 60 would never be considered. Thus, the employer would suffer substantial injustice if the decision is left unreversed. Further, for the reasons we have given, in our respectful opinion, the decision of the primary judge was attended with error."

The Court of Appeal ordered –

  1. Leave to appeal be granted.
  2. The appeal be upheld.
  3. The orders of the primary judge be set aside.
  4. In lieu of the orders made by the primary judge, there be the following orders:
  1. leave to appeal against the arbitrator's decision of 30 September 2016 be granted;(b) the appeal be upheld;
  2. the arbitrator's decision to refuse the employer's application be set aside;
  3. the employer's application under s 60 be remitted to the arbitrator for determination on its merits in accordance with these reasons.

The Court of Appeal declined an invitation from the employer to determine the merits of the issue as to whether there was a genuine dispute regarding whether the worker had failed to mitigate.

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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Ashley Crisp
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