Review of weekly payments
1987 Act section s 55 Review of weekly payments >>
because of a change of circumstances..."It may be seen from the terms of section 55 that before a review is to take place it must be established that there has been a change of circumstances. What is required to be proven, and the burden of proof is that of the moving party, is that there is some relevant change of circumstance between those which prevailed at the time of the making of the original award and those which have come to prevail since" : Mr O'Grady, in Whittaker v State Forests  NSWWCCPD 136.
"It is noted that a finding that there has been a change in circumstances is not the review itself. This finding only allows that review to proceed: Atlas v Bulli Spinners Pty Ltd (1993) 9 NSWCCR 378": arbitrator Duncombe in Pilmont PL v El-Massih  NSW WCC 219, 30.7.8.
Carrington Abrasive Cleaners PL v Standen  NSWWCCPD 143. Roche DP.
72. Whilst the use of the word “may” generally indicates, if used to confer a power, that the power may be exercised or not: section 9 of the Interpretation Act 1987 (NSW), it is my view that the Commission would only decline to conduct a review in circumstances where the change of circumstances relied upon made no material difference to the award being reviewed. That is not the situation in the present matter.
73. This approach is consistent with the decision by Kirby P in Atlas v Bulli Spinners Pty Ltd  NSWCC 17; (1993) 9 NSWCCR 378 where his Honour noted (at 384):
“Having, therefore, before her an application for review, which required proof of a change in circumstances, O’Toole CCJ should have taken the following steps. She should have determined first whether the requisite change of circumstances had been shown by the employer to warrant the exercise of the power of review.
If, by reason of differing evidence about the extent of the worker’s incapacity she were convinced that an applicable ‘change of circumstances’ was shown justifying review, her Honour would then be obliged to exercise the powers conferred upon the Compensation Court by section 55(2) of the 1987 Act (or section 60(1) of the 1926 Act). This empowers the Compensation Court, relevantly, to end or reduce the weekly payment.”
74. Acting Deputy President O’Grady considered the authorities dealing with a section 55 review in NSW TAFE Commission – North Sydney Institute v Zuk  NSWWCCPD 148. He concluded (at ):
"(i) A section 55 review is not a reconsideration of facts found in the earlier proceedings;
(ii) The review is an examination of circumstances which may have occurred since the original determination;
(iii) If such circumstances represent a change from those prevailing at the date of the original determination there may be grounds upon which a review is made;
(iv) In applying section 55 of the 1987 Act the starting point is an unqualified acceptance of the original decision maker’s findings;
(v) A review will occur only where it is established that circumstances that were before the original decision maker at the time of the award of weekly benefits and upon which the findings in relation to a statutory entitlement were made have changed;
(vi) Relevant ‘circumstances’ are not restricted to consideration of change of medical condition or capacity for work;
(vii) The onus is upon the party seeking review to satisfy the threshold issue of ‘change of circumstances."
75. I agree with this succinct and helpful summary.
76. Given Carrington’s surprising submissions, it is appropriate to consider some of the older authorities on reviews because they illustrate the points made by Acting Deputy President O’Grady.
In Ramsay v Gramophone Co Ltd  2 All ER 752 Scott LJ held that the purpose of the review provision was to enable:
“Periodic adjustment of weekly payments in correspondence with the degree of incapacity from time to time affecting the workman in actual fact.
"Whereas a jury assessing unliquidated damages for personal injuries has to forecast the future and make the best prospective estimate it can, the very essence of our legislative system of workman’s compensation is the avoidance of prospective estimates and the correction of current estimates from time to time to make them correspond with reality.”
After quoting the above passage, CP Mills noted in Workers Compensation (New South Wales) 2nd edition, Butterworths, 1979, at 481:
“Hence the change of circumstance that will justify a review will include any material bearing on the degree of incapacity resulting from the injury, or on the rate of compensation benefits to which the worker is entitled, at the date of the application for review.
If it justifies a different conclusion from that reached when the award was made, then the payment under that award may be varied or terminated.”
The various circumstances in which a review may be triggered are listed in Mills at 481. They include:
(a) where a worker’s physical condition as a result of the injury has either improved or deteriorated: Manly MC v Dodds  WCR 212;
(b) where there has been a change as to dependency: Edmunds v Hetton Bellbird Collieries Ltd  WCR 206;
(c) where a worker’s earnings have changed: Englefield Collieries Ltd v Roberts (1932) 25 BWCC 558;
(d) where there has been a general rise in the level of wages prevailing in the community: Producers Meat Supply Co Pty Ltd v McKinley  WCR 149, and
(e) any change in the criteria for entitlement to benefits under the legislation: Powell v Metropolitan Coal Co Ltd  WCR 213.
79. Having regard to the evidence and the above authorities, there are at least three relevant changes in circumstances in the present matter: (a) Mr Standen sold his business in April 2004 and his ability to earn had to then be assessed on the open labour market; (b) wage rates in respect of both probable earnings but for injury and ability to earn changed significantly between 1994 and 2004, and (c) the medical evidence suggests a change in Mr Standen’s physical condition as a result of the work injury.
81. The fact that Mr Standen voluntarily sold the Shell Roadhouse and relocated to Caloundra does not prevent a finding of a change of circumstances under section 55. In Rooney v Australian Iron & Steel Pty Ltd  NSWCC 16;(1993) 9 NSWCCR 372, a partially incapacitated worker who had worked as a coal miner accepted a consent award of weekly payments of compensation in respect of partial incapacity whilst continuing in the employer’s employ as an office worker.
In February 1993, the worker accepted an offer of voluntary retirement and then sought a review of weekly payments under section 55. Judge Moroney held that the worker’s voluntary retirement constituted a change in circumstances and varied the award from $50.00 per week to one at the maximum statutory rate from the date of retirement.
82. Relying on Novello v Zinc Corp Ltd (1988) 14 NSWLR 25, Moroney CCJ observed (at 377C) that there was no evidence that Mr Rooney had thrown away his employment out of folly or irresponsibility. His Honour then calculated Mr Rooney’s entitlement to weekly compensation in the usual way, bearing in mind the worker’s injury and general circumstances.
84. That a change in wage levels is sufficient to justify a review was confirmed by the High Court in Coalcliff Collieries Ltd v Campbell  HCA 53; (1964) 112 CLR 349. That case concerned a 1951 amendment to section 11(1)(b) of the 1926 Act by which pre-injury earnings were deemed to have increased by the amount of the increase in the basic wage up to that date. The Court (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ) held (at 351):
“An increase or decrease in the amount that a partially incapacitated worker is earning or is able to earn is, of course, a change in circumstances which would justify the review of the weekly payment to decrease or increase it, as the case may be,...”