SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0072

O’BRIEN TRANSPORT SERVICES PTY LTD	 First Applicant	
		
VICTORIAN WORKCOVER AUTHORITY	Second Applicant	
		
v		
		
PATRICK JOHN WILLIAMS	Respondent	

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JUDGES:	BEACH, KENNEDY JJA and O’MEARA AJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	30 March 2022	
DATE OF JUDGMENT:	12 April 2022	
MEDIUM NEUTRAL CITATION:	[2022] VSCA 62	
JUDGMENT APPEALED FROM:	Williams v O’Brien Transport Services Pty Ltd & Anor (Unreported County Court of Victoria, Judge Wischusen, 4 June 2021)	

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WORKER’S COMPENSATION – Respondent injured whilst driving truck – Respondent claimed statutory compensation – Claim accepted – Respondent resumed work after accident – Employer alleged that respondent resigned employment – Weekly payments later claimed – Decision by authorised agent – Decision disputed – Defence rejected – Weekly payments ordered – Interest on weekly payments – Whether authorised agent made a ’decision to terminate or reduce weekly payments’ – Whether interest payable – Statutory construction – Accident Compensation Act 1985, ss 114(2A), 114(2B), 114(2C) and 114E – Primary judge’s decision confirmed – Application refused. 

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicants	Ms F A L Ryan SC with
Ms S Gold	Hall & Willcox	
			
For the Respondent	Mr J P Brett QC with
Ms F C Spencer	Harris Lieberman Solicitors Pty Ltd	

Beach JA
Kennedy JA
O’MEARA AJA:
1	This is an application for leave to appeal from an order of a judge of the County Court.  On 4 June 2021, his Honour ordered that the second applicant pay the respondent weekly payments of compensation together with superannuation contributions on the said payments at the rate specified for no current work capacity in accordance with the Accident Compensation Act 1985 (the ‘Act’).  
2	His Honour also made the following order: 
4.	The second [applicant] pay the [respondent] interest on all outstanding weekly payments in accordance with section 114E(1)(c) of the Act from 21 November 2012 to this date and interest on all outstanding superannuation contributions pursuant to section 114EA of the Act, such order to be stayed for a period of 28 days from this date. 
(‘the interest order’)
3	The only order which is the subject of the current application is the interest order.
4	For reasons stated below, we have determined that the application for leave to appeal should be refused.
Factual Background
5	The respondent was born on 17 November 1961.  On around 10 April 2012, he started working for O’Brien Transport Services Pty Ltd (the first applicant) as an interstate truck driver. 
6	On 7 September 2012, the respondent was driving a Kenworth prime mover and trailer on the South Gippsland Highway near Koonwarra, in the course of his employment, when the vehicle slid on a slippery surface, jack-knifed, and struck two oncoming vehicles (the ‘accident’). 
7	Before the accident, the respondent had been working the equivalent of at least fulltime hours. 
8	Following the accident, the respondent was unable to return to work between 7 September 2012 and 23 September 2012 due to injuries he sustained in the accident.  The respondent later received weekly payments of compensation pursuant to the Act in respect of this period that he was off work. 
9	On 24 September 2012, the respondent returned to fulltime truck driving duties with the first applicant, with certified restrictions due to his injuries from the accident. 
10	The respondent did not receive weekly payments for the period from 24 September 2012 to 20 November 2012 when he was working with certified restrictions.  If the respondent had not been working fulltime hours in this period, he would have been entitled to weekly payments to compensate him for any loss of his pre-injury earnings under the Act. 
11	After the accident, the first applicant required the respondent to undergo a urine drug screen which returned a positive result for marijuana and amphetamines. A subsequent drug test returned a positive result for marijuana. 
12	The respondent was not working on the day that the first or second drug tests were taken.  There was no evidence of the level of substances found in the drug tests and it was not suggested that the respondent attended work on any day affected by drugs.
13	From 20 November 2012, the respondent did not perform any further work for the first applicant. 
14	On around 4 December 2013, the respondent completed a claim form in respect of injuries described as ‘Musculat (sic) skeletal contusions, Bruisi (sic), ankle’ said to have been sustained as a result of the accident. 
15	By notice dated 13 January 2014, an agent for the second applicant advised that it had accepted the respondent’s claim for weekly payments and medical and like expenses.  The notice identified the claim number as 12130041191.
16	On around 26 February 2014, the respondent completed a second claim form in respect of injuries described as ‘sensory changes R leg, pain R leg, R buttock and leg numbness, L shoulder and neck pain’, said to have been sustained as a result of the accident.  No written notice of a decision to accept or reject the second claim was given to the respondent. 
17	On 22 October 2015, the solicitors for the respondent wrote to the agent as follows: 
Unfortunately, our client and his partner are illiterate and were not aware of the contents of your letter dated 13 January 2014 and the no fault benefits which flowed from that.  It is for this reason that our client did not pursue WorkCover weekly payments or compensation for medical and like expenses.  It is only now that he has provided the writer with instructions that he has been advised of his rights.
We are instructed that our client has not been able to work since 13 January 2014, and requires a neurological consult as evidenced by the attached referral from his GP, Dr Peter Francis of the Federation Clinic, dated 8 October 2015.
…
We are also enquiring as to your view regarding our client's eligibility for weekly payments from 13 January 2014 to date.  We note that he is currently on a Disability Support Pension and receiving approximately $850.00 per fortnight.
18	On 10 November 2015, the respondent’s solicitors wrote to the agent stating that ‘we are obtaining a letter from the GP and Certificates of Capacity and will provide them when it comes to hand’.
19	On 11 January 2018, the respondent’s solicitors wrote to the agent, advising as follows: 
We note from the report of Dr Steele dated 14 September 2017 (copy attached) that Patrick is unable to return to his previous employment as a truck driver. He states in this report that “the current problem of chronic low back and lower limb pain/numbness is the main reason he is unable to work and these symptoms are the result of injuries sustained in the motor vehicle accident in 2012”. 
We advise that our client also suffers from a “language based learning disability” which has been present throughout his life and has resulted in him having reading and writing skills approximate to that of an eight year old according to Neuropsychologist, James Drury in his report dated 2 January 2018 (copy attached).
This has in turn affected our client’s ability to retrain for any other suitable occupation and according to James Drury our client’s physical restriction with leg mobility and pain exclude him from finding appropriate employment. 
In the circumstances we now ask that EML confirm in writing by return that it will instigate the payment of weekly payments of compensation pending receipt of suitable medical certificates from Dr Steele.

20	On 29 January 2018, the respondent’s solicitor again wrote to the agent, advising that the respondent had received no weekly payments despite his claim being accepted and despite him having been incapacitated for work.  The letter requested confirmation that the agent would pay weekly payments of compensation upon receipt of medical certificates from the respondent’s GP.
21	On 31 January 2018, the respondent’s solicitor further wrote to the agent enclosing Certificates of Capacity completed by Dr Steele, certifying the respondent as totally incapacitated for work for the period from 15 July 2016 to date.  The respondent’s solicitors requested that the agent pay weekly payments for the period covered by the certificates.
22	On 27 March 2018, the agent gave the respondent a notice ‘pursuant to s 114 of the Act’ (the ‘Notice’).  The Notice was given in respect of claim number 122130041191 and stated, inter alia, that: 
I am writing to you following a review of your ongoing entitlement to weekly payments.
…
EML’s decision
ln accordance with section 114(2A) of the Act, EML has determined not to pay you weekly payments on and from 21 November 2012 at any time thereafter after you resigned and/or reduced your current weekly earnings effective 20 November 2012. 
This means that you will not be paid weekly payments at any time on and from 21 November 2012 in accordance with the Act. 
Reasons for this decision
…
By letters dated 11 and 31 January 2018 your lawyers sought that weekly payments be reinstated. 
…
… EML does not accept that you have any entitlement to weekly payments under the Act at any time from 21 November 2012 onwards.  This is because on 20 March 2018 your former employer advised EML that you resigned from your employment effective 20 November 2012 due to failing a drug test from your yearly medical examination.
EML accepts that at the time of your resignation you were working your pre-injury hours and had an incapacity for work from your claimed injuries with restrictions on heavy lifting and manual labour consistent with the above certificates.  You therefore at the time of your resignation had an incapacity for work from your claimed injuries and had current weekly earnings from working modified duties/hours in suitable employment consistent with your certified capacity and, but for the current weekly earnings you received, would have had an entitlement to weekly payments under the Act.  You reduced your work hours and your current weekly earnings on and from 20 November 2012 when you resigned and/or your work hours for reasons unrelated to any incapacity for work from our claimed injury due to failing a drug test from your yearly medical examination.
Under section 114(2A) of the Act where there is a reduction in the current weekly earnings of a worker who has an incapacity for work from a work-related injury and is receiving or, but for their current weekly earnings, would have been entitled to receive weekly payments, because the worker has resigned and/or reduced their work hours for reasons unrelated to their incapacity for work from that injury, EML can determine not to pay weekly payments.
Accordingly, EML has decided not to pay you any weekly payments on and from 21 November 2012 or any time thereafter, including since 15 July 2016, the date from which you have sought to claim weekly payments based on the Certificates of Capacity provided, which Certificates of Capacity are invalid and/or of no effect if related to a period of more than 90 days prior to being provided.
[Emphases added]
Summary of proceedings
23	By writ dated 26 July 2018, the respondent commenced proceedings in the County Court of Victoria claiming weekly payments from 21 November 2012, or alternatively from 1 February 2013, to date and to continue in accordance with law. 
24	On 2 April 2020, Judge Coish of the County Court referred certain medical questions to a medical panel for its opinion.  Accompanying the referral was a schedule of documents, and a notice of facts agreed and in dispute dated 3 February 2020. 
25	On 4 December 2020, the panel provided its opinion and accompanying written reasons for opinion.  In answer to the referred questions, the panel relevantly found that, as a result of an ongoing lower back condition related to the accident, the respondent had an incapacity for pre-injury employment between 24 September 2012 and 6 March 2015, and, from 7 March 2015, no current work capacity, which was likely to continue indefinitely.
26	The trial proceeded over three days before his Honour Judge Wischusen.  The central issue was the applicants’ pleaded defence directed to s 114(2A) of the Act.  In that regard, the applicants alleged that ‘on and from 21 November 2012’ the respondent:
effectively resigned from his employment within the meaning of s 114(2A)(e)(i) and/or his current weekly earnings were reduced … within the meaning of s 114(2A)(e)(ii).
27	The applicants’ reliance on s 114(2A) was unsuccessful.  The trial judge gave judgment for the respondent on 30 April 2021.  There was a dispute between the parties regarding other matters, including whether interest was payable pursuant to s 114E of the Act.
28	On 27 May 2021, the parties made oral arguments, including in respect of the issue of interest.  On 4 June 2021, the judge ordered the following:
1. 	The Opinion of the Medical Panel set out in its Certificate of Opinion dated 4 December 2020 be adopted and applied. 
2. 	The decisions set out in the notice dated 27 March 2018 be set aside. 
3. 	The second defendant pay the plaintiff weekly payments of compensation at the rate for no current work capacity in accordance with the Accident Compensation Act 1985 (“the Act”) from 24 September 2012 to date and continuing together with superannuation contributions on said weekly payments in accordance with section 93CE of the Act. 
4. 	The second defendant pay the plaintiff interest on all outstanding weekly payments in accordance with section 114E(1)(c) of the Act from 21 November 2012 to this date and interest on all outstanding superannuation contributions pursuant to section 114EA of the Act, such order to be stayed for a period of 28 days from this date.
5. 	The second defendant pay the plaintiff’s costs of the proceeding, including reserved costs, on Magistrates’ Court Scale G, to be assessed by the Costs Court in default of agreement.  Certify for daily fees of counsel for one day of preparation, for 3 days of hearing, for one further day for submissions on interest and costs, and for 2 hours of conference. 
6. 	Liberty to apply be reserved in respect of the calculation of interest generally and compensation pursuant to section 93CE of the Act. 
29	As we have noted it is only the interest order (order 4) that is the subject of the proposed appeal. 
Reasons
30	In his ruling on 4 June 2021 (transcribed), his Honour stated the following in respect of the respondent’s claim for interest under s 114E of the Act:
The purpose of provisions such as s.114E is to compensate a worker for being kept out of his money for the periods of time to which the various provisions of sub-section (1), particularly (b) and (c), relate.  In my view, the determination not to pay compensation after the date specified in the notice, in circumstances where a claim had been accepted and payments had commenced, is a termination of weekly payments within the meaning of paragraph (c). 
The effect of the decision (set aside by the orders made), by its terms, ended the plaintiff’s weekly payments on and from 20 November 2012.  It is that decision which has been set aside.  In my view, there is nothing in the wording of s.114E, nor in the object or purposes of the Act or that provision which requires paragraph (c) to be read as requiring that weekly payments be actually being paid at the time the decision took effect.
In my view, the decision in Hall is perfectly explicable by the fact that the introductory words of (b) and (c) were not engaged because no decision had been set aside in the orders there made.  In my view, interest is payable on the arrears of compensation in accordance with s.114E(1)(c) from 21 November 2012 in accordance with the Act.  There will liberty to apply if agreement cannot be reached on the calculation of the amount of interest. 
In case that I am wrong in that conclusion that the determination not to pay after a specified date is a termination of weekly payments, then, in my view, the plaintiff would be entitled to interest under paragraph (b) on the basis that the notice is also a rejection of a claim for weekly payments. 
The expression used in s.103 and s.105 is “a claim for compensation in the form of weekly payments”.  Those provisions contain requirements which specify the form and content of documents that must be served before the ancillary provisions relating to deemed acceptance and the like come into operation. 
In my view, there is no requirement to read sub-section (1)(b) as if it related to, and only to, “claims for compensation in the form of weekly payments” that are referred to in s.103 and s.105. 
Here the content of the plaintiff’s solicitor’s correspondence and the provision of certificates of capacity were clearly intended to assert that the plaintiff was entitled to weekly payments on the basis of an earlier accepted “claim for compensation in the form of weekly payments”.  The letters requested that those weekly payments commence.  That the second defendant's agent treated the documents as such is made clear by the words used in the notice to be set aside.  In my view, nothing in the section, having regard to the purposes of the Act and the principles applicable to the construction of statutes like it, compels a narrow reading of sub-section (1)(b).  However described, the correspondence and certificates served claimed, and were understood to claim, weekly payments, and the agent rejected the claim for those weekly payments by the notice which has now been set aside. 
No object or purpose of the Act was submitted to be served by singling out those who were kept out of their money by refusal of a claimed entitlement to weekly payments in circumstances where an earlier claim had been accepted, whilst in almost all other circumstances interest is payable on the subject matter of the section, (by its heading) “outstanding weekly payments” later recovered where the decision, broadly, not to pay, has been set aside by a court.
Relevant Statutory provisions
31	The relevant sections of the Act are as follows:
114 	Termination or alteration of weekly payments
(1)	The Authority or self-insurer may in accordance with this Act terminate a worker’s entitlement to weekly payments or alter the basis on which the amount of the weekly payments is to be calculated whether or not the worker is currently receiving weekly payments.
(1A)	Subsections (2) to (13) only apply if the worker is currently receiving weekly payments as at the date of the change in the entitlement of the worker to weekly payments.
…
(2A) 	If the current weekly earnings of a worker who— 
(a)	has an incapacity for work resulting from, or materially contributed to by, an injury;  and 
(b)	is receiving, or but for the worker’s current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments— 
are reduced because— 
(c) 	the worker no longer resides in Victoria; or 
(d) 	the worker’s employment was terminated because of the worker's misconduct;  or
(e) 	the worker— 
(i) 	has resigned;  or 
(ii) 	reduced the hours worked otherwise than in the circumstances referred in section 93CDA— 
for reasons unrelated to the worker’s incapacity— 
the Authority or a self-insurer may determine— 
(f) 	not to alter the amount of compensation in the form of weekly payments paid to the worker;  or 
(g) 	not to pay compensation in the form of weekly payments.
(2B)	If the Authority or a self-insurer makes a determination under subsection (2A) –
(a)	the Authority or self-insurer must give written notice to the worker of the determination and the reasons for it;  and
(b)	the worker’s entitlement to compensation in the form of weekly payments is adjusted in accordance with the determination.
(2C)	A determination under subsection (2A) takes effect from the day on which the current weekly earnings were reduced or, if the Authority or self-insurer specifies a later date in the determination, on that later date.
…
114C 	Time for payment
(1) 	If a Conciliation Officer directs, or the Magistrates’ Court or the County Court determines, that weekly payments are payable by the Authority or a self-insurer, the Authority or self-insurer must commence payment, including amounts payable under section 114E, no later than 7 days after the direction or determination.
(2) 	On the commencement of payment under subsection (1), the Authority or self-insurer must pay an amount equal to any outstanding weekly payments to the worker. 
(3) 	If the Authority, a self-insurer or an employer accepts a claim for weekly payments, payments including amounts payable under section 114E must commence to be paid within 7 days after the claim is accepted. 
(4) 	If a Conciliation Officer directs or the Magistrates’ Court or the County Court determines, that weekly payments be made, section 114E applies and the entitlement of the worker to weekly payments commences on the date specified by the Conciliation Officer or by the Magistrates’ Court or the County Court.
…
114E 	Outstanding weekly payments
(1) 	The amount of outstanding weekly payments and interest at the prescribed rate on each outstanding weekly payment are payable to the worker in the following circumstances and in respect of the periods specified in relation thereto—
(a)	if a Conciliation Officer directs that weekly payments be commenced or continued to be paid at the current rate or increased, from the day— 
(i)	on which incapacity commenced;  or 
(ii)	on which weekly payments were terminated or altered;  or 
(iii)	on which the worker’s application to increase the amount of weekly payments was received by the Authority or self-insurer— until the day on which the direction is revoked or payments are commenced, continued or increased, whichever is the earlier; 
(b) 	subject to subsection (1A), if a decision to reject a claim for weekly payments is set aside by the Magistrates’ Court or the County Court, from the day on which the incapacity commenced until the day on which the decision is set aside;
(c) 	subject to subsection (1A), if a decision to terminate or reduce weekly payments is set aside by the Magistrates’ Court or the County Court, from the day on which the decision took effect until the day on which the decision is set aside;
(d) 	subject to subsection (1A), if a decision to reject an application by a worker to increase the amount of weekly payments is set aside by the Magistrates’ Court or the County Court, from a day determined by the Magistrates’ Court or the County Court until the day on which the decision is set aside; 
(e) 	if an employer, the Authority or a self-insurer fails to make any weekly payment as and when required by the Act to be made to a worker, from the day after the payment was required to be made until the day before the payment is made. 
(1A) 	If a worker has not made an application to the Magistrates’ Court or the County Court within one year of being notified by a Conciliation Officer under section 59(4) that the Conciliation Officer is satisfied that there is a genuine dispute with respect to the liability to make or continue to make weekly payments and that an application may be made to the Magistrates’ Court or the County Court to determine the matter, interest is not payable under subsection (1) in respect of the period beginning after the expiry of one year after that date and ending on the day on which the application is made.
(2) 	If an employer is responsible for making weekly payments to a worker, the Authority, must pay the employer the amount of any outstanding weekly payments payable under subsection (1). 
(3) 	Subsection (2) does not apply to a self-insurer or a subsidiary of a self-insurer except in relation to the employment of a student worker.
114EA 	Outstanding superannuation contributions
(1) 	Subject to subsection (2), outstanding payments of compensation in the form of superannuation contributions under section 93CE, and interest at the prescribed rate on each outstanding payment from the last date on which such a payment should have been paid until the date on which the payment is paid, are payable to the superannuation fund nominated by the worker under section 93CE for the benefit of the worker if a decision to terminate superannuation contributions under section 114AA is set aside by the court.
(2) 	If a worker has not made an application to the court within one year after being notified by a Conciliation Officer that the Conciliation Officer is satisfied that there is a dispute with respect to liability to make or continue to make payments of compensation in the form of superannuation contributions under section 93CE and that an application may be made to the court to determine the matter, interest is not payable under subsection (1) in respect of the period beginning after the expiry of one year after that date and ending on the day on which the application is made.
(3) 	If, under section 114E, outstanding payments of compensation in the form of weekly payments are payable in the circumstances referred to in section 114E(1)(b), (c) or (d), then, subject to section 93CE, compensation in the form of superannuation contributions under that section in respect of those outstanding payments and interest at the prescribed rate on each such payment are also payable.
Proposed grounds of appeal and contention
32	The applicant advances the following proposed grounds of appeal:
1.	The trial judge erred in finding that the decision of the agent set aside in Order 2 was a decision to ‘terminate or reduce weekly payments’ so as to engage s 114E(1)(c) the Accident Compensation Act 1985 (Vic). 
2.	The alternative finding of the learned trial judge that the decision of the agent set aside in Order 2 was a decision to ‘reject a claim for weekly payments’ so as to engage s 114E(1)(b) the Accident Compensation Act 1985 (Vic) was not open and in error. 
3.	The finding of the trial judge that the decision of the agent set aside in Order 2 ‘took effect’ on 21 November 2012 within the meaning of s 114E(1)(c) the Accident Compensation Act 1985 (Vic) was not open and in error. 
33	The respondent filed a notice of contention dated 16 August 2021 which stated the following further grounds:
(a)	The decisions set out in the notice dated 27 March 2018 that were set aside by paragraph 2 of the order made on 4 June 2021 included a decision within s 114E(1)(c) of the Accident Compensation Act 1985 (Vic) to adjust and reduce the weekly payments payable to the respondent from 21 November 2012 to nil. The above decision took effect from 21 November 2012 and, accordingly, interest is payable on each outstanding weekly payment payable from that date to the date the decision was set aside (4 June 2021).
(b)	Further or alternatively, the decisions set out in the notice dated 27 March 2018 that were set aside by paragraph 2 of the order made on 4 June 2021 were a rejection of the respondent’s application (constituted by the letters of his solicitors) to increase the amount of weekly payments he had received and was receiving within s 114E(1)(d) of the Accident Compensation Act 1985 (Vic). In accordance with s 114E(1), interest is payable pursuant to subparagraph (d) on each outstanding weekly payment that is payable to the respondent pursuant to paragraph 3 of the order made on 4 June 2021. Because of the respondent’s weekly earnings in the period from 24 September 2012 to 20 November 2012, outstanding weekly payments are only payable pursuant to paragraph 3 from 21 November 2012.
34	It will be evident that the grounds identified above are all directed to the proper construction and operation of s 114E of the Act and its various sub-paragraphs.  Unsurprisingly, the various arguments of the applicants and respondent overlapped.
Submissions
35	The applicants submitted that the purpose of s 114E(1) is to ‘very narrowly prescribe the circumstances’ in which interest is payable.  In that connection, counsel for the applicants submitted that s 114E(1):
operates to limit the circumstances in which interest is paid.  And it does not, as set out in its terms, apply to every type of application a worker might make with respect to his or her weekly payments.
36	It followed, the applicants submitted, that the decision of the agent was expressly no more than a decision ‘not to pay’ weekly payments pursuant to s 114(2A)(g) of the Act and that such a circumstance is not specified in s 114E(1)(c) or (b) (or, for that matter, elsewhere in s 114E(1)).  In so submitting, the applicants referred to s 103 of the Act – concerning the form of claims – and sub-ss 114(2)(b), 114(2)(c) and 114(3) concerning the termination of weekly payments.  Counsel submitted that any ‘gap’ in s 114E(1) would require legislative amendment.
37	As to the Notice, and particularly the statement that the agent had  determined not to pay weekly payments to the respondent ‘on and from 21 November 2012 at any time thereafter’, counsel at least doubted that the agent could have been ‘empowered to make that decision’ and maintained that the agent’s determination had not ceased the respondent’s entitlement to weekly payments.
38	As to s 114(2B)(b), which, in respect of a determination under s 114(2A), operates to adjust the worker’s entitlement to compensation in the form of weekly payments, counsel referred to Cetel Communications v Parker and also pointed back to s 114(2A) and said that it did not provide for termination, ‘in contrast to other provisions which do’. 
39	The applicants further submitted that the trial judge was in error in finding that any decision to terminate weekly payments ‘took effect’ on 20 November 2012.  That was said to have given rise to a ‘windfall’ to the respondent.
40	In addition to the above, the applicants submitted that the trial judge did not consider the potential operation of s 114E(1)(d) of the Act.  It was submitted that the present circumstances did not engage that subsection, but that if it were engaged interest ought only commence from 28 March 2018.
41	In a similar vein, the applicants submitted that it would be open for the Court to consider the operation of s 114E(1)(e) of the Act, albeit that it was again submitted that such provision was not presently applicable.
42	By contrast, the respondent submitted that the decision of the trial judge was correct.  Among other things, it was submitted that the decision of the agent was in the nature of a decision to terminate weekly payments or, alternatively, to reject a claim for weekly payments.
43	As noted, by notice of contention, the respondent also sought to advance further submissions concerning the character of the decision made by the agent as falling within another part of sub-s 114E(1)(c) or within sub-s 114E(d) of the Act.  
44	The applicants submitted that such contentions were to ‘strain’ the language of the statute.
Consideration
45	As noted, the various grounds and contentions depend upon the proper construction and operation of ss 114(2A) and 114E(1) of the Act together with a characterisation of the Notice.  
46	In the first instance, it will be necessary to apply the usual principles of statutory construction, which require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.   

47	Section 114 of the Act is, as its title suggests, directed to the ‘Termination or alteration of weekly payments.’  So much was recognised by this Court in Victorian WorkCover Authority v Balogh, in which Nettle JA, with whom Vincent JA and Hansen AJA agreed, identified the purpose of s 114 as follows:
…“the context, general purpose and policy” of s 114 was to provide comprehensively for the procedures for termination of payments for any of the several causes of termination for which the Act provides.
48	At that time, in 2004, s 114 did not contain ss 114(2A) to (2C).  Those provisions, along with some additional provisions not presently relevant, were inserted in 2010.
49	Section 114(2A) is directed to several circumstances; particularly, for present purposes, when current weekly earnings are ‘reduced’ because a worker has resigned for reasons unrelated to the worker’s incapacity.  In a situation of that kind, it may readily be understood that ‘current weekly earnings’ are ‘reduced’ to zero.
50	Section 114(2A) is, however, also directed to other and more limited circumstances.  Not all of those circumstances could be said necessarily to amount to a reduction of ‘current weekly earnings’ to zero, particularly where the worker has only ‘reduced the hours worked’.  In that sense, the word ‘reduced’ in s 114(2A) contemplates both reductions to more than zero, but also, in some such cases, reduction to zero.
51	It is with reference to that varying collection of scenarios that s 114(2A) thereafter provides that the Authority or self-insurer may determine either ‘not to alter the amount of compensation in the form of weekly payments paid to the worker’ or ‘not to pay compensation in the form of weekly payments’.
52	If such a determination is made, s 114(2B)(b) operates to ‘adjust’ the worker’s ‘entitlement to compensation in the form of weekly payments’ accordingly.  It follows that the ‘adjustment’ might be of a kind that, in substance, stands to extinguish the worker’s entitlement to weekly payments, but it also might not.  It will depend upon the particular circumstances.  
53	Once this is understood, it is evident why it was that the words ‘not to pay’ were used in s 114(2A) rather than ‘terminate’ or any other such language.
54	Further, pursuant to s 114(2C), such a determination takes effect ‘from the day on which the current weekly earnings were reduced’ or such later date specified by the Authority or self-insurer.
55	Finally, s 114E(1) is not just directed to payment of interest;  it is also directed to the payment of amounts of outstanding weekly payments.  In that connection, the circumstances identified in the sub-paragraphs of s 114(1) embrace a sequence of potential scenarios in which weekly payments might be found to be outstanding and therefore payable.  Those scenarios include where ‘a decision to reject a claim for weekly payments’ or ‘a decision to terminate or reduce weekly payments’ is later set aside.  In neither such instance, however, is any other provision of the Act relevantly incorporated; save for subsection (1A), which is presently irrelevant.  That suggests that no technical meaning is intended to be given to terms such as ‘claim’, ‘terminate’ and ‘reduce’ where used in s 114E(1).  
56	Such a construction is also consistent with s 114E(1) having not been amended when ss 114(2A) to (2D) were inserted in 2010.  
57	In our view, the following aspects of the history and provisions to which we have referred are of present significance:
(a)	section 114(2A) and associated provisions were inserted into s 114, which section expressly concerns ‘termination or alteration’ of weekly payments;
(b)	that was appropriate, as the circumstances addressed by s 114(2A) include those ranging from where ‘current weekly earnings’ are ‘reduced’ in the sense of being altered to where they are reduced in the sense of becoming zero.  In the latter event, ‘current weekly earnings’ are, in effect, ceased;
(c)	in that connection, if a determination is made ‘not to pay’ weekly payments – which might be thought to be most often made when current weekly earnings have been ‘reduced’ to zero – the worker’s entitlement to compensation in the form of weekly payments is, by s 114(2B)(b), adjusted accordingly;
(d)	in that event, by operation of s 114(2B)(b), the worker may have no entitlement to compensation in the form of weekly payments;
(e)	section 114E is not just directed to the issue of interest and also embraces a range of potential scenarios in terms that are not suggestive of any technicality in approach;  and
(f)	in that regard, when s 114(2A) and associated provisions were inserted it was not apparently thought necessary to effect any associated changes to s 114E(1).
58	It follows from the above that the applicants’ submission to the effect that a determination made by the Authority or a self-insurer under s 114(2A) does not affect the entitlement of the relevant worker to weekly payments must be rejected.  Section 114(2B)(b) operates to adjust that entitlement in accordance with the determination made pursuant to s 114(2A).
59	Further, the presently relevant words appearing in s 114(2A) – ‘not to pay’ – are not intended to be technical words of limitation.  Contrary to the submission advanced on behalf of the applicants, both those words and the term ‘reduced’ appearing earlier in s 114(2A) are ambulatory in effect, because the section contemplates the making of a determination by the Authority or self-insurer not to pay weekly payments in scenarios ranging from a ‘reduction’ of ‘current weekly earnings’ in the nature of a mere alteration to a ‘reduction’ of ‘current weekly earnings’ in the nature of a diminution to zero.  Consequently, a determination ‘not to pay’ may be made in respect of that differing range of circumstances – some of which stand to leave the underlying entitlement to weekly payments unaffected and others of which stand as, in effect, a cessation or termination of that entitlement.
60	Moreover, neither the statutory history nor the non-technical use of the terms to which we have referred is suggestive of any intention of the Parliament to exclude from the ambit of s 114E(1) workers who have been put out of interest in respect of weekly payments to which they are subsequently determined to have been entitled. That is, in our view, certainly not so by reason of any technical characterisation of the determination concerned as being one ‘not to pay’ weekly payments as opposed to being, in some formal sense, a ‘termination’ of the entitlement to weekly payments.  As we have endeavoured to explain, in some circumstances the effect of a determination ‘not to pay’ will be to that very effect.  In that instance, by operation of s 114(2B)(b), such a worker will thereafter have no entitlement to compensation in the form of weekly payments.  In such a circumstance, there will be no difference between such a worker and another worker whose payments have been formally ‘terminated’ under a different provision of the Act.
61	In this context, the Notice came to be considered by the agent in the following circumstances : 
(a)	the respondent had claimed compensation by form dated 4 December 2013;
(b)	by that claim form, the respondent claimed compensation including weekly payments;
(c)	his claim was accepted and, indeed, the respondent received weekly payments of compensation in respect of a two week period in September 2012;
(d)	as at 20 November 2012, the respondent was working within certified restrictions but was not receiving any weekly payments of compensation;
(e)	after 20 November 2012, the respondent did no further work for the first applicant; 
(f)	it seems to have been contended – at some point – that the undertaking of no further work for the first applicant amounted to a resignation from such employment by the respondent;  and
(g)	notwithstanding the above, the respondent’s solicitors wrote to the agent on 22 October 2015 and 11 January 2018 in respect of his entitlement to weekly payments of compensation.
62	The agent thereafter came to issue the Notice, the following features of which are of significance:
(a)	it commenced by stating that the author was ‘writing to you following a review of your ongoing entitlement to weekly payments’ and shortly thereafter again referred to the ‘review of your entitlement to weekly payments’;
(b)	it also recited that the respondent’s claim was accepted and acknowledged that ‘weekly payments commenced on 7 September 2012’;
(c)	in respect of ‘EML’s decision’, the Notice stated, among other things, that ‘EML does not accept that you have any entitlement to weekly payments under the Act at any time from 21 November 2012 onwards’ and thereafter referred to the respondent as having ‘reduced’ his current weekly earnings ‘effective 20 November 2012’, by having resigned;
(d)	in giving reasons for that decision, the Notice again referred to the determination of the agent ‘not to accept that you have any entitlement to weekly payments under the Act at any time from 21 November 2012’;  and
(e)	the agent ultimately determined that the respondent would not be paid weekly payments of compensation from 21 November 2012 or ‘at any time thereafter’.
63	It follows that the Notice is properly characterised as, in effect, terminating any entitlement of the respondent to weekly payments from 21 November 2012.
64	Once the character of the agent’s decision is properly understood, the question then becomes whether one or more of the sub-paragraphs of s 114E(1)  is engaged.  In that connection, s 114E(1)(c) is directed to a decision ‘to terminate or reduce weekly payments’ that is later set aside.  
65	There is no issue that the decision made by the Notice was later set aside by his Honour. 
66	It follows, in our view, that, given the proper characterisation of the Notice and construction of the statutory provisions to which we have referred, his Honour was correct to determine that the effect of the decision of the agent was to terminate or reduce weekly payments within the non-technical meaning of those words in  s114E(1)(c).  Consequently, the respondent was and is entitled to interest ‘at the prescribed rate on each outstanding weekly payment’ from ‘the day on which the decision [of the agent] took effect until the day on which the decision is set aside [by the trial judge]’.
67	In the present context, the decision of the agent was also expressed as taking effect from 21 November 2012 which, within the language of s 114(2C) of the Act, is ‘the day on which the current weekly earnings were reduced’.  It follows that there was no error in his Honour ordering that interest be paid ‘from 21 November 2012 to this date’.
68	Proposed grounds 1 and 3 must therefore be rejected.
69	It also follows that no error is shown in the decision of the trial judge, and that order 4 was correctly made.
70	In light of the above, it is unnecessary for any of the parties’ various further arguments to be determined, including in respect of proposed ground 2 and the grounds raised by the notice of contention.
Conclusion
71	The application for leave to appeal must be refused.
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