Section 59A Reconsidered

In Flying Solo Properties Pty Limited t/as Artee Signs v Collet [2015] NSWWCC PD 14 Roche DP overturned a number of arbitrator decisions, including Vella v Penrith City Council [2014] NSWWCC 363, in which it had been held that for the purposes of s.59A(2) weekly payments were “paid or payable” during any of the prescribed entitlement periods for weekly benefits regardless of whether an actual entitlement to weekly benefits arose.

Roche DP determined that weekly benefits were only “paid or payable” in respect of a period during which a worker had an actual entitlement to weekly payments based upon an economic loss assessed in accordance with the formulae provided by the weekly payment provisions and, further, that a worker “ceased to be entitled to weekly payments” for the purposes of s.59A(2) once there was no economic incapacity giving rise to an actual entitlement to weekly payments. Roche DP further noted that there were a number of circumstances in which the entitlement to weekly payments might cease and that it would not always be necessary for this to have been determined either by the Commission or an insurer by a Work Capacity Decision.

It is implicit in the approach adopted by Roche DP that s.59A(2) comes into operation on the first occasion that a worker ceases to be entitled to weekly payments, meaning that the 12 month period following which the entitlement to s.60 expenses will survive commences on that date.

Roche DP further confirmed, however, that after the date of cessation of weekly payments under s.59A(2) a worker will again be entitled to s.60 expenses under s.59A(3) in respect of medical expenses incurred during any subsequent period in which weekly payments again become payable.

Thus, in Mr Collet’s case, although his entitlement to s.60 expenses under s.59A(1) had expired and s.59A(2) did not apply because there had been no relevant actual entitlement to weekly payments, he would nevertheless again be entitled to s.60 expenses by reason of the incapacity which would inevitably result from neck surgery which had been recommended to him.

Roche DP concluded by stating that s.59A in its present form was likely to wreak confusion and injustice and recommended that the legislature reconsider it.