Workers Compensation – by Ashley Files

Pennington v Return to Work SA
[2016] SAET 21

This was a referral of a question of law to the Full Bench of the SA Employment Tribunal.

 The question involved the transition from the WR&C Act to the RTW Act on 1 July 2015 (‘the designated day’).

 In 2013, the worker had been totally incapacitated for work and had received weekly compensation payments.  In 2014, she had recovered somewhat, but had an ongoing partial incapacity.  She was able to take up work with another employer.  Her wages were at least as much as her notional weekly earnings, and so the compensating authority (rightfully) discontinued her weekly compensation payments.

 In August 2015, the worker’s employment was terminated.  She then claimed to have her weekly compensation payments recommence, on the basis that she still had an ongoing partial incapacity.  The claim was rejected.

 The question for the Full Bench was whether the worker ‘was still entitled to receive a weekly payment’ as at 1 July 2015.  That depended on the statutory construction of the transitional provisions.  The worker contended that she still had a potential entitlement at that time, because her non-receipt of weekly payments was contingent on her continuing to work and to earn more than her notional weekly earnings.  She contended that the transitional provisions were broad enough to cover that situation.

 The Full Bench disagreed, and held that “… if a worker before the designated day was not in receipt of weekly payments and was not at that time entitled to receive weekly payments on account of a discontinuance under s 36 of the WR&C Act, that worker has no entitlement to weekly payments under cl 37 of the RTW Act or under the WR&C Act.

 The members noted it seemed an unfair result for the worker in this particular case, but nevertheless found that was the proper construction of the transitional provisions.

Ashley Files
8 June 2016