Does “before” mean “immediately before”?

Consideration of Section 41(5) of the Workers Compensation Act 1987

Shayne Michael Taylor v Soxami Pty Ltd; Burrangong Pet Foods Pty Ltd; Burrangong Meat Processors Pty Ltd; Burrangong Abattoirs Pty Ltd (in receivership) [2019] NSWWCC 396 (11 December 2019)

Section 41 of the Workers Compensation Act 1987 (WCA) provides for the payment of weekly benefits after the expiration of the second entitlement period where the worker suffers incapacity resulting from an injury related surgery. Weekly benefits under Section 41 can only be paid for a period of 13 weeks.

Section 41(5) provides:

(5) The following requirements must be satisfied for a worker to be eligible for the special compensation provided for by this section—

• the worker must have received weekly payments of compensation in respect of the initial injury and have had current work capacity prior to suffering the incapacity resulting from the injury related surgery,
• the worker must have returned to work after the initial injury (whether in self-employment or other employment) for a period of not less than 15 hours per week and have been in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week.

Mr Taylor’s case

In Mr Taylor’s case, the WCC considered whether he was entitled to weekly benefits under Section 41 when he had not worked immediately before the surgery.

Mr Taylor suffered injuries to his back on 31 October 1997 and his right ankle on 27 September 2002. He returned to work following those injuries and continued working until the abattoir closed in February 2010. He did not return to work after the closure of the abattoir. He underwent an L5/S1 disc decompression on 7 January 2016. He claimed weekly benefits under Section 41 for the period from 7 January 2016 to 8 April 2016.

The Employer submitted that Mr Taylor must demonstrate that he had current work capacity immediately prior to the surgery in order to establish an entitlement to weekly benefits under Section 41.

The Arbitrator’s decision

The Arbitrator found that Section 41 does not require that the worker demonstrate current work capacity immediately before the surgery. He said “the provision does not provide any limitation on the period when current work capacity is to be demonstrated”.

He went on to say that it is highly likely that in the period prior to the surgery, the level of incapacity would have increased to the point where surgery was required. He was satisfied that the requirement to have had current work capacity prior to suffering the incapacity resulting from the injury related surgery can be met by current work capacity at any time following the initial injury.

Implications

In this instance, the Arbitrator found that “before”, in the context of Section 41(5) does not mean “immediately before”. This means that in claims under Section 41, the parties must look at the whole of the period since the injury, and not just the period immediately before the surgery in order to determine whether the worker has an entitlement.

If you have any queries about a specific workers compensation matter, please do not hesitate to contact our Workers Compensation Team on 02 4929 9333 or 02 8297 5900.