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[2013] TASSC 36
General information, not legal advice.
Supreme Court of Tasmania
2013-07-24
Blow CJ
Original judgment source is linked above.
CITATION: Federal Hotels Ltd v Webb [2013] TASSC 36
APPEALED FROM: Federal Hotels Ltd Trading As Tasmanian Country
Club Casino v W [2013] TASWRCT 10
Workers' Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction of courts, tribunals, commissions and boards - Workers Rehabilitation and Compensation Tribunal (Tas) - Weekly payments - Medical certificate after gap in certification - Right of employer to treat certificate as claim for compensation - Whether employer may dispute continuing liability without disputing initial liability.
Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108; Williams v Norske Skog Papers Mills (Australia) Ltd [2003] TASSC 125, distinguished.
Judgment Number: [2013] TASSC 36
1 The Workers Rehabilitation and Compensation Act 1988 ("the Act") has been in force for about a quarter of a century. It often happens that a worker becomes incapacitated, receives weekly payments of compensation, returns to work, subsequently ceases work, and seeks a resumption of weekly payments. In an ideal system of dispute resolution, if there were a dispute in such a case as to whether the worker was entitled to resume receiving weekly payments, the procedures for resolving such a dispute would be straightforward and well understood. It seems that Tasmania has not developed an ideal system.
2 The events leading up to the institution of this appeal were as follows:
3 This is an appeal by the employer from those orders. The employer contends that the learned Chief Commissioner erred in his approach to the operation of ss69(13) and 81A of the Act, and that he should have made a determination under s81A(3)(c) that compensation was not to be paid.
4 Section 81A of the Act, when it applies, enables an employer who is disputing liability to make payments of compensation to seek a speedy determination as to whether such payments are to be made or not. The section can be invoked in two situations - following an initial claim for weekly compensation, or following a gap in the provision of medical certificates.
5 So far as weekly payments of compensation are concerned, the scheme created by the Act in relation to the "initial claim" situation can be summarised as follows:
6 Section 69(13) allows the s81A procedure to be invoked by an employer when there has been a gap of more than 14 days between the "expiry" of a medical certificate and the provision of another medical certificate. The subsection reads as follows:
"(13) If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."
7 I need to explain the reference in that subsection to "the period specified in a medical certificate". By virtue of s69(1), when a worker suffers a compensable injury, and total or partial incapacity for work results, the employer is not required to make weekly payments of compensation to the worker unless "the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person". The approved form of medical certificate requires the medical practitioner or accredited person to specify that the worker was incapacitated between two dates.
8 Section 69(13) was introduced by the Workers Rehabilitation and Compensation Amendment Act 2000. It seems clear that the subsection was inserted for the benefit of employers who wished to be relieved of statutory obligations to make weekly payments without having to refer matters to the Tribunal pursuant to s42, and without having to continue making weekly payments until matters were fully heard and determined by the Tribunal. When s69(13) applies, an employer can proceed speedily under s81A, rather than more slowly under s42. The subsection applies when there has been a gap of more than 14 days between the expiry of one medical certificate and the provision of the next. If the employer refers the matter to the Tribunal pursuant to s81A, the Tribunal must then consider whether the employer has a reasonably arguable case. If it decides that question in favour of the employer, it must determine that compensation is not to be paid: s81A(3)(c). It is then up to the worker to decide whether to pursue a referral under s42 and seek a determination in his or her favour.
9 The critical question in this case is whether the employer was entitled to rely upon s69(13). The learned Chief Commissioner held that it had no such right. After considering a submission concerning Dr Ulman's report, he rejected the proposition that the employer did not have a reasonably arguable case. However he reached a conclusion to the effect that, because the employer accepted that it had originally been liable to make weekly payments following the injury of 31 December 2011, it was not entitled to rely upon ss69(13) and 81A when it contended that the worker's incapacity no longer had a sufficient connection to the work injury for it to be liable to make weekly payments to him. The employer contends that the learned Chief Commissioner erred in law in reaching that conclusion.
10 The learned Chief Commissioner's reasoning as to ss69(13) and 81A appears at par[6] of his reasons, in which he said the following:
"6 Apparently it is the employer's case based upon the above that the accepted suffering of on-going symptoms of back pain/discomfort is not what results in the incapacity, but rather the underlying non work caused condition of sponylolisthesis [sic]. The employer has accepted that the initial injury resulted in symptoms and incapacity. However, the employer now takes the view that the symptoms have continued, the injury has not resolved but the incapacity is now not as a result of the injury. The employer is in effect submitting that there has been an intervention at some time of a different cause of the incapacity. Such scenario is properly provided for by Section 86(1)(c) as a ground of terminating weekly payments. This referral does not challenge the foundational liability of the employer. By this referral the employer does not challenge the claim by the worker that as a result of a work incident he suffered an injury which has resulted in a certified incapacity for work. This initial liability is established and has not been challenged by this referral. I do not accept that the subject medical certificate can in effect be treated as a separate claim for compensation as it has meaning and context only if it is treated in conjunction with the initial claim for compensation. Section 80A (despite the wording of Section 69(13)) provides that there can be only one claim for compensation for the purposes of Part VII, Division 1. The initial liability of the employer to pay weekly payments has not been challenged by this referral, the issue raised by the referral is that there has occurred some change in circumstance which provides a basis to lawfully terminate the obligation to make weekly payments. Such circumstance is a matter for Section 86(1)(c) not Section 81A."
11 That paragraph contains no references to any case law, nor to any principles of statutory interpretation. The critical reasoning concerns two provisions in the Act. The learned Chief Commissioner first referred to s86(1)(c). Under s86(1), there are a number of situations in which an employer may unilaterally terminate or reduce a weekly payment to a worker, without first obtaining a favourable determination of the Tribunal. Under s86(1)(c), one such situation is where a medical practitioner has examined the worker and certified that the worker has wholly recovered, or substantially recovered, or that the worker's incapacity is no longer due, wholly or substantially, to the injury. However this was not a situation in which the employer could rely on s86(1)(c) because weekly payments had been stopped upon the worker resuming work in June 2012. Section 86(1) only applies when weekly payments are being made, and the employer wants to stop them or reduce them.
12 The learned Chief Commissioner also referred to s80A. That section reads as follows:
"For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer."
13 It is true that the effect of that section is that there can be only one initial claim for weekly compensation for the purposes of Part VII of the Act. However s69(13) has the effect of allowing an employer to treat a medical certificate, provided after a gap in certification, as something which it is not. When s69(13) applies, a medical certificate that is not an initial claim may be treated by the employer as if it is an initial claim for the purpose of invoking s81A. Although the effect of s80A is that there may be only one true initial claim, as distinct from a later medical certificate treated as an initial claim, it does not follow that a medical certificate after a gap in certification may be treated as something that it is not in one situation but not another. That is to say, it does not follow that a medical certificate after a gap in certification may be treated as something that it is not when it is contended that the employer never had a liability to make weekly payments, but may not be treated as something that it is not if the employer contends that it was liable in the past, but is no longer.
14 Section s69(13) applies when two things have happened. First, the period specified in a medical certificate provided by a worker under s69 must have expired. That had happened in this case. Then, the worker must provide a further certificate, more than 14 days after that expiry. That happened in this case in November 2012. The controversy in this case concerns the extent of the rights conferred on an employer when those events have occurred. Section 69(13) says that the employer may then treat the new certificate as a claim for compensation to which s81A applies. The learned Chief Commissioner appears to have taken the view that that meant only that the employer was permitted, in such a situation, to contend at a s81A hearing that it had never had any liability under the Act to make payments in respect of the original injury. The appellant contends that the words "may treat that certificate as a claim for compensation to which section 81A applies" should be given a wider interpretation, whereby an employer would also have the right to contend that a liability to make payments had ceased, without contending that there had never been any such liability.
15 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at par[47], Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
16 There is nothing in the text of s69(13) to suggest that, when there has been a gap in certification that makes the subsection applicable, the employer may only treat the new certificate as a claim for compensation to which s81A applies in some situations and not in others.
17 By virtue of s8A(1) of the Acts Interpretation Act 1931, an interpretation that promotes the purpose or object of a statutory provision must be preferred to an interpretation that does not promote that purpose or object. The purpose of s81A is to enable an employer, if there is a dispute about liability to make payments of compensation, to seek a speedy determination as to whether payments are to be made or not - a determination that may later be reversed upon the determination of a s42 referral. The purpose of s69(13) is to extend the operation of s81A so that it applies not only in the "initial claim" situation, but also in the "gap in certification" situation. In my view the purpose or object of s69(13) would be promoted if an employer were able to invoke that provision in relation to a dispute that concerned only the question of its liability to resume making weekly payments. Otherwise an employer in the appellant's situation would have to make weekly payments pending the determination of a s42 referral.
18 No doubt that are sometimes cases in which, after the making of some weekly payments and a gap in certification, the employer contends that (a) it was never liable to make weekly payments; and (b) in the alternative, if it was liable to make weekly payments in the past (which it disputes), then any such liability has ceased. It would be absurd if, in such a situation, s69(13) permitted the employer to litigate the first contention at a s81A hearing, but not to litigate the second contention at the same hearing.
19 The strongest argument advanced by counsel for the worker was based on s25(1) of the Act. That is the foundational provision whereby, when a worker suffers an injury in certain specified circumstances, his or her employer is, subject to exceptions, "liable to pay compensation in a accordance with this Act". The word "liable" in that provision refers to the sort of inchoate liability that arises immediately at the time of a worker's injury: State of Tasmania v Parsons [2002] TASSC 59; (2002) 11 Tas R 26 at par[20]; Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6, per Porter J at par[5], and per Estcourt J, with whom Porter and Wood JJ agreed, at par[35].
20 The word "liability" is also used in s81A(1). That subsection is the critical provision as to when s81A applies and when it does not. It provides as follows:
"(1) An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81(1) or benefits under Division 2 of Part VI must, within 84 days of receiving the claim for compensation in respect of the injury to the worker -
(a) serve the worker with written notice that the employer disputes liability -
(i) to pay compensation by way of weekly payments; or
(ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury; and
(b) inform the worker of the reasons for disputing liability; and
21 Counsel for the worker submitted that "liability" has the same meaning in s81A(1) as it does in s25(1). If that were correct, ss69(13) and 81A could be invoked only when an employer contended that it had never had any liability to a worker in respect of an injury that was the subject of an initial claim. But in my view that is not correct. There is no logical reason why an employer who has paid compensation, and stopped paying it because of a gap in certification, should, after the presentation of a fresh medical certificate, have a fresh opportunity to contest foundational liability in the s25(1) sense in s81A proceedings, but not have an opportunity to contend in such proceedings that it has no ongoing obligation to pay compensation. The context and purpose of ss69(13) and 81A compel a conclusion that the word "liability" should be given a wider meaning in s81A(1) than it has in s25(1).
22 Counsel for the worker, in submitting that an employer in the circumstances of the appellant is not entitled to use s69(13) in order to dispute liability under s81A, relied on two single-judge decisions of this Court: Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108 and Williams v Norske Skog Papers Mills (Australia) Ltd [2003] TASSC 125.
23 In Von Stieglitz, a worker had suffered a back injury, received weekly payments of compensation, and returned to work. She contended that she had suffered a recurrence of symptoms, presented some medical certificates, and sought the resumption of weekly payments. The employer contended that there was insufficient evidence of incapacity for work, and referred the matter to the Tribunal, relying on ss69(13) and 81A. In fact it filed two such referrals, but it discontinued both of them before the Tribunal conducted a hearing. The worker filed a referral to the Tribunal, and that referral proceeded to a hearing as to a preliminary issue. The employer had not resumed making weekly payments. The preliminary issue was whether the employer was taken to have accepted liability by virtue of s81AB. In essence that section provides that, when an employer has received a claim for compensation, and does not dispute liability in accordance with s81A, then the employer is "taken to have accepted liability in respect of that claim". The Tribunal held that the three medical certificates were not claims for compensation as defined in s80A; that they therefore were not claims for the purposes of s81AB; and that s81AB therefore did not apply. On appeal, the worker contended that s81AB did apply when weekly payments had merely been in abeyance as a result of medical certificates not being presented, relying on Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240. However there was no evidence before the Tribunal as to whether weekly payments were left in abeyance for that reason or stopped for some other reason. Crawford J (as he then was) therefore dismissed the appeal. There is nothing in that case that has any relevance to the construction of the words "may treat that certificate as a claim for compensation to which section 81A applies" in s69(13), nor as to the meaning of "liability" in s81A(1).
24 In Williams, a worker suffered a wrist injury, claimed compensation, and commenced to receive weekly payments. A medical certificate expired on 31 October 2002. There was a gap in certification until March 2003, when a new certificate was provided. The employer sought to invoke ss69(13) and 81A, but left it too late. Under s81A(1), as it then read, an employer had 28 days after receiving the claim for compensation in which to serve the worker with a notice disputing liability, inform the worker of the reasons for disputing liability, and refer the matter to the Tribunal. When s69(13) applies, time starts to run upon the employer receiving the fresh medical certificate. Since the employer had left it too late to rely on s69(13), no question arose in that case as to its scope, nor as to the meaning of "liability" in s81A(1). Cox CJ allowed the appeal, holding that the weekly payments had been in abeyance during the gap in certification, and that the employer was obliged to resume them pursuant to s69(1) when further certificates were provided. He followed Viney v Roney Management Pty Ltd (above).
25 Both of these cases contain comments as to the distinction between medical certificates and claims for compensation in the s80A sense: Von Stieglitz at par[21]; Williams at par[5]. Counsel for the respondent relied on those comments, but his submissions about them were inconsistent with the plain wording of s69(13) which clearly requires, when it applies, medical certificates to be treated as something that they are not, namely claims for compensation in the s80A sense.
26 Counsel for the worker made submissions based on ss60A, 81AA(4), 77AA and 86 of the Act. Section 60A empowers the Tribunal to make an interim determination, to operate only during a specified period. In my view that section operates independently of s81A, which in effect provides for provisional determinations whose operations are not limited to specified periods. Section 81AA(4) exempts "a claim in respect of which section 69(13) applies" from the operation of s81AA. Under that section, when an employer receives an initial claim for compensation and makes weekly payments, the making of the weekly payments is not to be construed as an admission of liability; the weekly payments are to be taken in reduction of the amount of any liability that the employer has to the worker in respect of the injury; the weekly payments are, as a general rule, not recoverable by the worker from the employer; and the amount of the weekly payments is, subject to exceptions, recoverable by the employer from its insurer. However those consequences do not attach to the making of weekly payments following the receipt of a s69(13) claim for compensation, as distinct from an initial claim. Section 77AA has similarities to s81A. It applies in relation to a claim by a worker for the payment of expenses. It requires the employer who receives such a claim to pay the expenses unless the employer serves the worker and the service provider with notices disputing the claim. Section 86, as I have said, empowers an employer to terminate or reduce weekly payments in certain defined circumstances. In my view there is nothing in any of these sections that has any bearing on the scope of s69(13) or the meaning of "liability" in s81A(1).
27 Having regard to the wording, context and purpose of s69(13), I hold that its concluding words, "may treat that certificate as a claim for compensation to which section 81A applies", should be construed as entitling an employer, when the subsection applies, to treat a fresh medical certificate as if it were a claim for compensation in the s80A sense for the purpose of disputing either its initial liability to make payments of compensation or a contention that, after the provision of the certificate, it has a duty to make such payments.
28 As I have said, the Tribunal had evidence, in the form of a report from Dr Ulman, that the worker's incapacity was no longer wholly or substantially due to the injury on 31 December 2011. The learned Chief Commissioner made a finding of fact as to the opinion expressed by Dr Ulman, saying, "I do not accept that Dr Ulman's recent opinion could be said to be totally without weight so as to be capable of rejection out of hand at this stage." Counsel for the worker submitted to me that it was not open to the Tribunal to conclude, on the basis of the relevant report of Dr Ulman, that, within the meaning of s81A(3)(c), a reasonably arguable case existed concerning the liability of the employer to pay compensation by way of weekly payments. He argued to the effect that Dr Ulman's final report could not be relied on as the basis for such a conclusion because that doctor had previously taken a different view. From time to time there are cases in which the material before the Tribunal compels a particular conclusion as to whether a reasonably arguable case exists: St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90; (2007) 17 Tas R 43 at par[15]. If, on the material before the Tribunal, reasonable minds could differ as to the existence of an arguable case, it is open to the Tribunal to reach a conclusion either one way or the other. In this case, the expression of a different opinion by Dr Ulman at an earlier stage did not compel a conclusion that his later opinion was wrong. It was open to the learned Chief Commissioner to make the finding that he did.
29 If the learned Chief Commissioner had not erred as to the scope of s69(13), that finding would have compelled him to conclude, in the words of s81A(3)(c), that "a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments". He should therefore have determined, pursuant to that provision, that compensation was not to be paid by the employer.
30 I have therefore decided to allow the appeal, set aside the determination of the Tribunal, and order that compensation is not to be paid by the appellant to the respondent. Since that it is an order pursuant to s81A(3)(c), it does not preclude the respondent from seeking compensation by means of a referral under s42.
Federal Hotels Ltd
Webb [2013] TASSC 36
(2009) 239 CLR 27
(2002) 11 Tas R 26
(1996) 6 Tas R 240
(2007) 17 Tas R 43