Does the Tiger have Teeth? A Comprehensive Review and Analysis of Section 52A.

Tim Wardell, Special Counsel, appeared for the successful appellant in the important Workers Compensation Commisssion Presidential Appeal of PCR Plaster Settings Pty Ltd v De Brito (No.3) (2008) NSWWCC PD 82.

Tim provides our readers with his insights in relation to the application of S.52A. Click here.

Tim concludes that of the three grounds for discontinuance provided by S.52A(1), the grounds concerning State of the Labour Market ( sub-section (c)) and Unreasonable Rejection of Suitable Employment (sub-section (b)) are likely to have only limited application, but that a properly prepared discontinuance on the basis that a worker is Not Suitably Employed and Not Seeking Suitable Employment (sub-section (a)) represents a powerful tool for insurers:

“Once payments have been validly terminated pursuant to the section, the worker is forever precluded from further weekly compensation for partial incapacity;ss.(2) and (3).This means that the worker cannot subsequently seek a reinstatement of payments……”

Tim discusses the complex criteria for determining whether a worker is considered to be seeking suitable employment, the evidentiary onuses, and the importance of effective Service of Notices.

IR Settlement Extinguishes Compensation Rights.

In Adams v Fletcher International Exports Pty Ltd CA 40830/2007 the NSW Court of Appeal held that a worker who signed a Deed after a compromised Unfair Dismissal settlement, including reference to injuries sustained during the course of employment and providing for payment of $2500.00, was not entitled to any further workers compensation.

The Court considered that the worker had received “damages’ and was therefore precluded by S.151A(1) WCA from being entitled to any further compensation in respect of the injury concerned.

Principles of Causation for Workers Compensation Claims

We receive regular enquiries from clients requesting clarification of the correct legal approach to the question of causation. The issues were succinctly summarised by Walker J. of the Compensation Court in Doyle v Manly Pacific Hotel [1998] NSWCC 44 at [71] as follows:

  • The Court is to take a commonsense approach to the causal chain and is to ask the ultimate question posed by S.4 namely: was the worker’s injury the result of his or her employment?
  • The Court can take a robust and pragmatic approach to the facts even though the medical science cannot arrive at a definite or a more probable conclusion.
  • Medical science cannot determine with certainty what caused a particular mental illness. Yet the Courts have not been deterred by the limitations of medical science and have been prepared to sheet home liability on the balance of probability.
  • The Court may be assisted by the medical evidence but cannot simply transfer its task as the triar of fact to the medical witnesses.
  • If there are more than one precedent events which are possible causes, the Court must consider whether an inference that there is a nexus between the trauma and the disability is justified and whether such an hypothesis is accepted by the medical evidence.
  • If medical science is prepared to say there was a possible connection between the events and the disability, then the Court, after examining all the evidence, may decide that it is probable.
  • A finding of causal relationship may be open without any medical evidence to support it.
  • A judge faced with conflicting expert opinion may accept portions of the evidence to produce a synthesis, but may not produce a finding which is not derived from any combination of parts of the total medical evidence.

Walker J also referred to cases concerning the de minimus nature of the employment contribution to the injury, however that aspect of his decision is now affected by the factors identified in S.9A.

WCC Christmas Arrangements

The Workers Compensation Commission has advised of the following arrangements:

  • No Teleconferences or arbitrations will be listed from 19/12/08 to 09/01/09 inclusive, other than where requested by the parties.
  • Extended Service dates are provided for matters registered from 15/12/08 to 24/12/08.
  • Extended dates for filing of Reply are provided for matters registered form 03/12/08 to 24/12/18.

Edwards Michael Powell Christmas Arrangements

We will be closed from 24/12/08 to 02/01/09 inclusive.

Urgent enquiries should be directed to the Partners by email.

For More Information

Please contact us should you have any queries regarding the above.