Can subsequent section 74 notices trump a work capacity decision in NSW?

A recent decision of the Workers Compensation Commission in Lowes v Secretary, Department of Education on 12 July 2017 (Matter No:1435/17), found a change in circumstances and subsequent dispute notices were insufficient to provide the Commission with jurisdiction to decide a worker's claim for weekly compensation.

Relevant Law

Section 43 of the Workers Compensation Act, 1987 provides:

3. The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.

Facts

• Lee-Ann Lowes (worker) suffered a compensable psychological injury whilst working as a primary school teacher with the Department of Education (employer) in 2015.
• The insurer made a work capacity decision reducing the worker's weekly compensation payments to nil effective from 30/08/2016, on the basis the worker had the capacity to engage in full-time employment as a primary school teacher. The only restriction was that she not return to the school where she suffered her injury.
• The worker did not challenge the work capacity decision. Instead, she made further claims for weekly benefits based on a certificate of capacity in which her treating GP certified her as having no current capacity for any employment from 07/06/2016. Subsequent certificates only certified her as being fit for restricted hours until 27/01/2017.
• The insurer responded by issuing dispute notices pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998.
• The worker relocated to Campbelltown in August 2016, but it was not until late 2016 or early 2017 that she was offered casual employment at another school.
• Her treating GP provided her with a WorkCover certificate stating she had capacity for full-time duties from 27/01/2017.
• The worker filed an Application in the Workers Compensation Commission claiming weekly benefits from 30/08/2016 to 27/01/2017.
• The worker asserted her circumstances had changed when her GP provided her with a subsequent certificate of capacity certifying her as having no current capacity for any employment from 07/06/2016.
• The employer challenged the jurisdiction of the Commission to make a decision about the worker's entitlement to weekly payments from 30/08/2016, and relied on prior presidential decisions of the Commission in Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3 (Rawson) and Lee v Bunnings Group Ltd [2013] NSWWCCPD 54 (Lee) and Workers Compensation Nominal Insurer v Demasi [2017] NSWWCCPD 9 (Demasi).

Arbitrator's decision

The matter proceeded to determination by Arbitrator John Harris who found:

• In accordance with the decision of President Keating in Demasi, there was nothing in the legislation to indicate a work capacity decision will only be binding for a limited period of time or will lapse at the end of a certain period.
• The correct path for the worker was to challenge the work capacity decision (Demasi).
• In accordance with the decision of Deputy President Roche in Rawson, a work capacity decision operates into the future and is not limited by time.
• Whilst he thought the subsequent section 74 notices complicated the matter, the fact they were issued did not mean the work capacity decision did not continue to operate.
• The claim for weekly compensation payments from 30/08/2016 was unsuccessful because the insurer had already determined the worker's entitlement to weekly payments in the work capacity decision.

Take away points

• Consistent with the observations of the Court of Appeal in Sabanayagam v St George Bank Ltd [2015] NSWCA 145, an arbitrator is still able to make a decision in respect of a dispute before the Commission, provided it is not inconsistent with the relevant work capacity decision.