Who is an Existing Recipient of Weekly Benefits?

In Ingham’s Enterprises Pty Limited v Sok [2014] NSWCA 217 the Court of Appeal recently confirmed that the Commission does have jurisdiction to award weekly payments under the provisions introduced by the Workers Compensation Legislation Amendment Act 2012 provided that no Work Capacity Decision has been made pursuant to s.43 of the 1987 Act as amended.

That decision did not, however, refer to or appear to contradict the decision of President Keating in Lee v Bunnings Group Limited [2013] NSWWCC PD 54 that the Commission’s jurisdiction extends only to awards under the new ss.36 and 37 and that there is no jurisdiction to make any award under the new s.38 as that section exclusively vests the decision making process in an insurer.

Under the transitional provisions (Schedule 6, Part 19H of the 1987 Act and Schedule 8 of the Workers Compensation Regulation 2010) a worker who had made a claim for compensation prior to 1 October 2012 became subject to the new weekly payment provisions from 1 January 2013 unless that worker was an “existing recipient” of weekly payments “immediately before” 1 October 2012, in which case benefits remain payable under the old provisions until 3 months after a Work Capacity Decision had been made by the insurer.

The issue of whether a worker was an “existing recipient” has been a cause of some controversy.

It was quickly and universally accepted in a number of decisions by arbitrators that in order to be an existing recipient a worker had to be in actual receipt of benefits at the relevant time and that it was not sufficient for there to have been an entitlement to such benefits established retrospectively by an award of the Commission; see, for example, Mohammadi v Chandler Macleod Group t/as Ready Workforce Pty Limited [2013] NSWWCC 75.

Identifying the relevant time connoted by the expression “immediately before” has proved less straightforward and has also been considered by a number of arbitrators, but not by a Presidential Member of the Commission.

In those decisions, it has been accepted that a worker need not have been in receipt of weekly benefits on 1 October 2012 but that payments must have been made “closely to” or “in the vicinity of” that date.  In Mohammadi it was considered that “perhaps within the last week or two” prior to that date would be sufficient, although subsequent cases, with one notable exception, have suggested a narrower interpretation.  In Soares v Maxitherm Boilers Pty Limited [2013] NSWWCC 425, for example, it was found that a gap of 3 business days between the termination of benefits and 1 October 2012 was a sufficiently short time to satisfy the “immediately before” requirement but that “any period beyond 3 business days would be unreasonable”.

In McAdam v Kororo Public School P&C Association [2013] NSWWCC 444, however, it was held that a period of 19 days was sufficient to satisfy the “immediately before” requirement with particular emphasis being placed upon the fact that each case had to be considered on its own circumstances and that 19 days was not a significant period in the context of the worker having been in receipt of weekly payments for over 4 years prior to the insurer declining further liability.

It is doubtful that the duration of payments prior to 1 October 2012 is a relevant consideration and, having regard to the spectrum of decisions by arbitrators in relation to this issue, McAdam would have to be regarded as an anomalous outcome.

The consensus to be gleaned from the majority of cases is that a worker who ceased to receive weekly payments more than a week before 1 October 2012 is unlikely to be considered an “existing recipient”, but would be likely to be so found if payments ceased less than a week before that date.