BARCLAY MOWLEM CONSTRUCTION LTD v DONALDSON [1994] NSWCA 18

BARCLAY MOWLEM CONSTRUCTION LTD vy DONALDSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and POWELL JJA 27 July 1994, 18 August 1994

[1994] NSWCA 18

Workers Compensation — Amount — Partial incapacity — Notional total incapacity — Weekly payments — Computation of amount — Workers Compensation Act 1987 s38

In February 1989 D a miner employed by B sustained an injury to his lower back as a result of an incident which occurred during the course of his employment. In May 1989 after a period of total incapacity D applied to B for suitable light duty work which work B was unable to provide.

B's insurer arranged for D to undertake rehabilitation training with a view to fitting him for employment outside the mining industry.

In August 1989 Bs insurer declined further liability for either further weekly payments of compensation or for the cost of rehabilitation training.

Thereafter D commenced actively seeking employment but was unable to obtain suitable alternative employment until February 1990.

On an application by D for (inter alia) weekly compensation pursuant to s38 B contended that as D had undertaken rehabilitation training his entitlement to compensation under s38 terminated on the expiration of 4 weeks from the time when that training ceased ie. September 1989.

Herkes CCJ made an award under s38 up to mid-January 1990 and thereafter an award under s40 in respect of D s continuing incapacity.

B appealed.

Mahoney JA I agree with the judgment of Powell JA and generally with his Honour's reasons.

I do not think that, as was suggested in argument, s38(4) operates as an alternative to the operation of s38(2), in the sense of providing an alternative basis of compensation for which there must be in effect an election. As, I think, Powell JA has indicated, one of the purposes of subs(2) and subs(4) is to allow flexibility in the way a partially incapacitated worker may, during the statutory period of thirty-four weeks, act. The section allows "deemed total" compensation during a period not exceeding twenty-six weeks during which the worker "is receiving approved rehabilitation training". But it does not require that training to be taken during one continuous period or during a period commencing "immediately after" the initial four week period specified in s38(2)(a). The rehabilitation may be taken at appropriate times and for appropriate periods. During other times, provided the statutory requirements are met,