Significant Developments for S.52A claims

On 07 August 2008 Deputy President Roche of the WCC issued his Determination in PCR Plaster Settings Pty Ltd v Manuel De Brito [2008] NSWWCCPD 82.

This was the third successful appeal from various Arbitrator decisions by the Scheme Agent (EML).

An earlier appeal ( [2007] NSWWCCPD 159 ) specifically endorsed the proposition that claimants in receipt of Awards of the Court or Commission are subject to the provisions of S.52A.

DP Roche has now given approval to the notion that that a worker may be deemed to be not seeking suitable employment in the circumstances identified in S.38A(2), giving rise to a rebuttable presumption against the worker for S.52A purposes.

A S.52A(1)(a) denial may therefore be maintained if evidence is available that a worker:

  • is not ready, willing and able to accept an offer of suitable employment from the employer
  • has not supplied a medical certificate or other relevant information to assist in determining what is suitable employment
  • has not requested the employer or insurer to provide suitable employment (unless it is apparent that the worker is ready, willing and able to accept an offer of suitable employment)
  • is not taking reasonable steps to obtain suitable employment from some other person (including seeking or receiving reasonable rehabilitation training to improve employment prospects)

DP Roche found that Mr De Brito was not entitled to compensation beyond the Notice period, partly because the jobs he applied for were not suitable.

Another important aspect of the Decision is that DP Roche accepted that the Notice period should commence from when Notice was actually given to the worker, deemed under S.76 of the Interpretation Act 1987 to be 4 working days after being posted. Mr De Brito was therefore entitled to compensation for 6 weeks and 4 working days from when the Notice was posted.

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