District Court Refuses Workers’ Compensation Appeal – Worker Had Not Returned To Work

The respondent (Wilkinson) was employed by the applicant (employer) as a welder/fabricator. On 30 January 2014 the respondent injured his right thumb at work. Liability was accepted.

In April 2014, following a rehabilitation program, the respondent returned to work with restrictions. On 22 May 2014 the respondent was informed by the applicant that his employment was terminated and he was retrenched due to lack of work.

Payments of workers’ compensation were then ceased without notice – his employer claiming that the respondent had returned to work for the purposes of s5(1) and s61(1) of the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act).

The respondent brought an application to reinstate payments – alleging that the employer had breached s61(1) of the Act. His application was referred to arbitration.

On 19 January 2015 the learned arbitrator found in favour of the respondent. The arbitrator found that the respondent had not returned to work in the sense required under s61 of the Act and that accordingly, the respondent was entitled to weekly compensation payments on the basis of total incapacity from 27 May 2014.

The employer appealed the decision to the District Court on a number of grounds with respect to the finding there had not been a return to work.

Birmingham DCJ found that as no error of law within the meaning of s247 had been made the application for leave to appeal must be refused.
 
The decision was based on reasoning including:
1. the medical evidence, when considered in its entirety, supported the inference drawn by the learned arbitrator that the applicant was ‘fit to try to return to normal duties’ as opposed to being fit to resume his pre-accident duties on a full time unrestricted basis;

2. that the respondent had attempted to return to work subject to the qualified certificate from the plastic surgeon but was unable to undertake the tasks by reason of his incapacity.

This decision demonstrates that careful consideration must be given when considering whether or not there has been a return to work for the purposes of s61 of the Act. Consideration should be given as to whether the worker has returned to “real” duties as opposed to a trial of duties or where there are ongoing restrictions.

This CASE LAW UPDATE is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

© Copyright 2015, SRB LEGAL – All Rights Reserved

Date: 10 December 2015

Should you require any further information relating to the above decision, please contact one of the following partners on telephone (08) 9221 3110.