Section 64 of the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA) has replaced section 61 of the now repealed Workers’ Compensation and Injury Management Act 1981 (WA) (the 1981 Act).
The explanatory memorandum presented in the Legislative Assembly of the WCIMA states that:
“Clause 64 is similar to the provisions and processes in section 61 of the current Act for discontinuing or reducing weekly payments on the basis of a medical certificate (evidence) indicating a worker has total or partial capacity for work, or the incapacity is no longer a result of the injury.”
While section 64 of the WCIMA purports to be similar to section 61 of the 1981 Act, the changes may alter the way the provision is interpreted and/or applied.
This article examines the similarities and differences between the two sections, and we provide our observations about how section 64 operates in practice.
Saying goodbye to section 61
Section 61 of the 1981 Act provides that an employer must serve on the worker a notice which includes a report of a medical practitioner who “has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury”.
The case law regarding section 61 suggests that a medical certificate which accompanied a section 61 notice must be “clear unambiguous and not vague”,[1] and must “serve as a clear and unequivocal record of the medical position and so serve as the definitive reference point in determining the parties’ rights and obligations”.[2]
In practice, this meant that:
- The notice issued to the worker must be accompanied by medical evidence – either in a report or certificate.
- The medical report or certificate must contain a clear opinion that the worker has a total capacity for work, or that the worker has a partial capacity for work, or that that the worker’s incapacity no longer results from the injury.
- The notice issued to the worker must indicate the action the employer intends to take, and that action should correspond with the evidence. For example, if the clear opinion says that the worker has a partial capacity for work then the notice should not indicate an intention to discontinue payments completely.
Provided the notice and medical evidence satisfied those criteria, the notice would be valid. An arbitrator could then determine the dispute on its merits (i.e. whether or not they agreed with the medical opinion and whether or not they agreed that the medical opinion should have an affect on weekly payments of compensation).
Challenges to the validity of the notice arose if:
- the medical practitioner didn’t use words in their report that specifically related to “capacity” but still suggested that a worker had a full capacity for work (i.e the worker has fully recovered from the injury);
- the medical practitioner didn’t use words in their report that specifically related to “capacity” but might be interpreted (sometimes incorrectly) as meaning the worker had full capacity for work (e.g. the worker is at “maximum medical improvement); or
- the medical practitioner gave apparently inconsistent opinions throughout the course of their report, without explaining the inconsistencies (eg. saying the worker has a capacity to work, but could not tolerate work); or
- if the medical certificate or report was not provided to the worker with the notice.
The new era of section 64
The wording of section 64 in the WCIMA deviates from its predecessor.
Section 64(1) of the WCIMA states:
“The requirements of this section must be complied with before an employer is permitted to reduce or discontinue income compensation payments on the basis of medical evidence from a medical practitioner as to —
(a) the worker’s capacity for work; or
(b) the extent to which the worker’s incapacity for work is a result of the worker’s injury”.
Section 64(2) of the WCIMA relevantly states:
“(a) the employer must give the worker written notice in accordance with the regulations of the proposed action together with a copy of the medical evidence on the basis of which it is proposed to take that action;” (emphasis added)
“(b) the worker must be allowed a period of 21 days after the requirements of paragraph (a) are complied with in which to apply for a resolution by conciliation of a dispute about the proposed action”
Accordingly, the requirement now is to:
- Provide the worker or the worker’s lawyer (if the lawyer is instructed to accept service of a section 64 notice on the worker’s behalf):
- A notice using the regulated form (WorkCover WA Approved Form CN3).
- A copy of the “medical evidence” (rather than a “certificate”) which discusses “the extent” (rather than “certifies”) of the worker’s capacity.
- Wait a period of 21 days to see if the worker disputes the notice.
- If the worker does not dispute the notice, payments can be ceased on Day 22.
To be valid, or not to be valid?
We have not yet received an arbitrator’s decision determining the validity of a section 64 notice. As such, the requirements of a valid notice under the WCIMA are currently unclear. The different language (extent versus certifies) seems like it might make the requirements of the content of the medical opinion less stringent, and not requiring an unequivocal reference to capacity in the supporting medical evidence in the notice. However, it is clear that the medical evidence must somehow be capable of supporting the proposed action.
Although we have not yet received any decisions, we have had to consider various challenges to the validity of section 64 notices over the past 9 months.
The common issues we have observed are:
1. The WCIMA requires the Form CN3 to be served on the worker. If the worker is represented, we suggest serving the worker and their lawyer concurrently. This should avoid any questions arising if the notice is served on the worker’s lawyers only.
2. Make sure (all) the medical evidence is provided. If you are relying on a supplementary report, then you should include the primary report as well so that the supplementary report and opinion can be understood in context.
3. The Form CN3 must be filled out correctly and completely in order to properly constitute a “written notice in accordance with the regulations”. Make sure that spelling is correct and that all part of the form – including the “medical evidence summary” – are completed. Just because the medical evidence is attached does not mean the “medical evidence summary” should not be completed. This is your opportunity to explain why the medical evidence provide the “basis of which it is proposed to take that action”.
4. The Form CN3 does not appear to allow alternative actions to be proposed. You must select one box and nominate only figure for the “proposed income compensation” amount. So make a decision at the time of issuing the notice whether the medical evidence provides a basis for discontinuing compensation, or just reducing.
5. The Form CN3 indicates that the employer intends to make a change “21 days after this notice is given to you”. However, the WCIMA says that “the worker must be allowed a period of 21 days after [the notice is sent]”. The WCIMA trumps the guidance provided in the notice and the language in the WCIMA suggests that the date of proposed action should be more than 21 days after the date the notice is given to the worker. For example, if you give the worker a notice on 1 April, then the date of proposed action should be 23 April to make sure the worker has had a clear 21 day period to file an application before payments are affected.
We are sure there will be more to add to this list as our understanding and experience of the WCIMA in practice develops and we see some decisions coming through.
If you require assistance with navigating the WCIMA, reach out to our dedicated workers compensation team and follow Jackson McDonald on LinkedIn to receive our updates.
This article was written by Xavier Soon, Solicitor Insurance & Risk.
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[1] Vurlow v Leighton Nursing Home [1978] WAR 15.
[2] Compass Group (Australia) Pty Ltd v Delides C1-2009, McCann P, 16 January 2009 at [19].