Welcome to the October 2014 Edition of the Edwards Michael eBulletin.

Section 59A Considered

The expressions “weekly payments of compensation are or have been paid or payable” and “ceased to be entitled to weekly payments of compensation” for the purposes of s. 59A(2) were considered by Arbitrator J Snell in Vella v Penrith City Council [2014] NSW WCC PD 363.  The subsection provides that s. 60 expenses are not payable, in the case of a worker to whom weekly payments are or have been paid or payable, “more than twelve months after the worker ceased to be entitled to weekly payments”.

The insurer argued that the worker “ceased to be entitled to further weekly compensation” because he went back to work after a single day of incapacity and, further, that additional periods of incapacity as found by the Arbitrator brought the matter under s. 59A(3) which provides that if a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to s. 60 expenses, the worker is once again entitled to s. 60 expenses but only in respect of such expenses incurred during a period in which those further weekly payments are payable.
The Arbitrator rejected the Respondent’s submissions and considered them to be impractical.  The Arbitrator determined that a worker does not “cease to be entitled to weekly payments” until the end of the Second Entitlement Period regardless of whether there has in fact been any incapacity giving rise to an entitlement to weekly payments and, further, that the entitlement to weekly benefits during the First and Second Entitlement Periods may extend beyond 130 weeks from the date of injury because the relevant weeks can be aggregated and need not be consecutive.  In reaching this conclusion, the Arbitrator considered the following matters to be of particular relevance:-

  •  s. 33 provides in general terms that weekly benefits “shall” be payable during a period of incapacity which results from an injury
  • s 32A provides that weekly payments during the First and Second Entitlement Periods can be aggregated and need not be consecutive, meaning that weekly payments are payable during any period of incapacity until the 13 and 117 week periods respectively have been exhausted; and
  • s. 38(1) provides that “a worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the Second Entitlement Period unless the worker is entitled to compensation after the Second Entitlement Period under this section”, this suggesting that the “entitlement” to weekly payments during a period of incapacity will not “cease” until at least 130 weeks of weekly payments in aggregate have been paid.

The effect of this decision is that a worker who has been or becomes entitled to weekly benefits will continue to be entitled to s. 60 expenses until twelve months after the maximum entitlement to weekly benefits has actually been exhausted, regardless of whether such worker is in fact entitled to weekly benefits.  For example, a worker who had one month off work and then returned to pre-injury duties would be entitled to s. 60 expenses until retiring age because that worker would never have exhausted the entitlement for the first 130 weeks of incapacity.

It is arguable that the approach adopted by the Arbitrator was flawed in that it placed too much emphasis on the provisions which provide a maximum limit on the recovery of weekly  benefits and gave too little regard to  the fundamental requirement that such entitlement arises only when an economic incapacity is present.  In other words, the “entitlement” to weekly payments arises only while there is a relevant “incapacity” and not simply because such entitlement would arise if a relevant incapacity were present within the first 130 weeks of incapacity (or beyond were s. 38 applicable).  Further, the interpretation adopted by the Arbitrator appears to remove any role for s. 59A(3) in that it is difficult to see how a worker could “become entitled to weekly payments” after ceasing to be entitled to s. 60 expenses if the entitlement to s.60 expenses extends until twelves months after all entitlements to weekly benefits have been exhausted.