Workers Rehabilitation and Compensation Act 1988 (Tas), ss81, 81A.

Precise Timbers Pty Ltd v Burgess [1991] TASSC 20; (1991) 3 Tas R 124, distinguished.

Workers compensation - Assessment and amount of compensation - Cessation of payments - Right of employer generally - Statutory grounds for termination of weekly payment cannot be relied upon to justify non-payment where payment has not been commenced.

Workers Rehabilitation and Compensation Act 1988 (Tas), s86(1).

Related action - Underwood, J, 11 October 1995, A65/1995, unreported, available on SCALE.

Solicitors for the Respondent: Wallace Wilkinson and Webster

COX CJ On 6 April 1994 the respondent worker, pursuant to the Workers Compensation Act 1988 (since re-titled the Workers Rehabilitation and Compensation Act 1988) ("the Act") made a written claim for compensation upon the appellant employer in respect of an injury suffered by her arising out of and in the course of her employment with the appellant on 25 September 1990. The claim was accompanied by a medical certificate of the respondent's incapacity for work from 14 March 1994 to 17 April 1994. Although defective in form, the validity of the claim was preserved by the Act, s34(3). Notwithstanding the provisions of s81, the respondent failed to make any payments of weekly compensation and on 28 June 1994 the respondent made application to the Workers Compensation Commissioner in reliance upon the Act, s42 asking him to hear and determine the following:

"The applicant claims weekly payments under the Workers' Compensation

Act 1988 from the 6th April, 1994 to date in respect of injuries

and/or disease suffered by the applicant on the 25th September, 1990."

2. On 18 November 1994 the matter was heard by the learned Commissioner, the only material put before him being the claim form and thirteen medical certificates. In December 1994 he made an order in the following terms:

"After hearing the parties herein on 18th November, 1994 I determine

that the employer is under an obligation to make weekly payments to

the worker in respect of the worker's claim of 6/4/94 and I order that

the employer make weekly payments of compensation together with the

cost of any benefits payable under Division 2 of Part VI of the Act in

respect of periods of incapacity supported by medical certificates

within 28 days of the date of this order."

3. From this order the respondent appealed to this Court. It was common ground that the learned Commissioner had erroneously included an order in respect of the cost of any benefits payable under the Act, PtVI and the order of this Court deleted the words in respect thereof from the learned Commissioner's order but otherwise confirmed the same and dismissed the appeal.

4. At the hearing before the learned Commissioner, the respondent had sought to raise the issue that the claim, not having been made within six months after the date of the occurrence of the injury, the appellant was not entitled to compensation under the Act (s32(1)). The learned Commissioner determined that that issue was not before him. Likewise he declined the respondent's application to call evidence relevant to the issue of the causation by the injury of the respondent's incapacity for work on the basis that it was not an issue before him.

"1 That the learned Judge erred in law in finding that a claim for

compensation made outside the period prescribed by Section 32 (1) (b)

of the Workers Compensation Act 1988 (hereinafter the 'Act') was a

valid claim unless the employer took action under Section 81 A of the

Act to dispute the claim.

2 That the learned Judge erred in law in failing to hold that a claim

for compensation made outside the period prescribed by Section 32 (1)

(b) of the Act was invalid in the absence of an Order by the Workers

Compensation Commissioner excusing such delay pursuant to Section

38 (1) of the Act.

3 That the learned Judge erred in law in holding that a claim for

compensation which had not been disputed by the employer pursuant to

Section 81 A of the Act was settled by agreement.

4 That the learned Judge erred in law in failing to hold that an

employer who had neither made an application pursuant to Section 81 A

of the Act nor had made any payments of compensation had not settled

by agreement the workers (sic) claim for compensation.

5 Alternatively, that the learned Judge erred in law in failing to

hold that the appellant's obligation to make payments of compensation

ceased on or about the 11th day of July 1994 and that thereafter the

respondent would be required to produce evidence of incapacity to

establish liability to pay compensation."

6. The Act provides, in ss81 and 81A, a regime designed to ensure that an injured worker who is incapacitated for work receives a prompt commencement of weekly payments of compensation upon submitting to his employer a claim for compensation unless the employer avails himself of the dispute provisions. At the relevant time they provided as follows:

"81 (1) Where an employer has received a claim for compensation in

relation to an injury to a worker employed by the employer and the

worker's first pay day after receipt of that claim

(a) is not later than 14 days after the receipt of that claim, the

employer must -

(i) if it is reasonably practicable to do so, commence making weekly

payments to the worker on the first pay day; or

(ii) in any other case, commence making weekly payments to the worker

not later than 14 days after receipt by the employer of the worker's

claim for compensation; or

(b) is later than 14 days after the receipt of that claim, the

employer must commence making weekly payments of compensation on that

pay day.

(2) Subject to subsection (3), an employer who fails to comply with

subsection (1) is guilty of an offence.

Penalty: Fine not exceeding 20 penalty units and, in the case of a

continuing offence, a further fine not exceeding 5 penalty units for

each day during which the offence continues.

(3) This section does not apply to an employer who, in accordance with

section 81a (1), disputes liability to pay compensation by way of

weekly payments.

(4) In this section, "pay day" means the day on which the worker would

normally receive salary or wages from the worker's employer.

81a (1) An employer who disputes liability

(a) to pay compensation by way of weekly payments for an injury

referred to in section 81 (1); or

(b) to pay the cost of any benefits payable under Division 2 of

Part VI in respect of the injury

must, within 14 days of receiving the claim for compensation in

respect of the injury to the worker

(c) serve the worker with written notice that the employer disputes

liability

(i) to pay compensation by way of weekly payments and must inform the

worker of the reasons for disputing liability; or

(ii) to pay any benefits payable under Division 2 of Part VI in

respect of the injury and must inform the worker of the reasons for

disputing liability; and

(d) refer the matter to the Commissioner.

(2) An employer who refers a matter to the Commissioner under

subsection (1) must, at the time of referring the matter to the

Commissioner, advise the Commissioner in writing whether or not weekly

payments are being made to the worker pending determination of the

matter by the Commissioner.

(3) Where a matter is referred to the Commissioner under

subsection (1), the Commissioner must

(a) if the Commissioner considers that weekly payments should be made,

order the employer to make weekly payments from such date as the

Commissioner determines; or

(b) if the Commissioner considers that the cost of any benefits

payable under Division 2 of Part VI in respect of the injury to the

worker should be paid, order the employer to pay the cost of the

benefits from such date as the Commissioner determines; or

(c) if the Commissioner considers that a genuine dispute exists

concerning the liability of the employer to pay compensation by way of

weekly payments, determine that compensation is not to be paid by the

employer; or

(d) if the Commissioner considers that a genuine dispute exists

concerning the liability of the employer to pay the cost of any

benefits payable under Division 2 of Part VI in respect of the injury

to the worker, determine that the cost of the benefits is not to be

paid by the employer.

(4) The fact that the Commissioner has determined under subsection (3)

that weekly payments should be made, or that the cost of any benefits

payable under Division 2 of Part VI in respect of the injury to the

worker should be paid, is not to be taken into account by the

Commissioner in any other proceedings under this Act.

(5) Notwithstanding that liability has not been disputed in accordance

with subsection (1), an employer who wishes to dispute liability to

continue to pay compensation by way of weekly payments for an injury

referred to in section 81(1) or to pay the cost of any benefits

payable under Division 2 of Part VI in respect of the injury may, at

any time after the expiration of the period referred to in

subsection (1) of this section, refer the matter to the Commissioner."

7. The appellant did not make an application in accordance with s81A(1), nor indeed any other application or reference under the Act, to dispute the respondent's right to payment of weekly compensation. Notwithstanding its clear obligation to commence the payments of weekly compensation required by s81, it never made any such payment at all. Counsel for the appellant submitted that s81 falls within that part of the Act dealing with payment. It merely regulates when the first payment is to be made and imposes a penal sanction for non-compliance. It contains no enforcement procedure if payment is not made. Compliance with the section by payment, he submitted, concludes the issue of liability as against the employer. He placed reliance upon the decision of the Full Court in Precise Timbers Pty Ltd v Burgess [1991] TASSC 20; (1991) 3 Tas R 124 where, payment having been commenced and not disputed by the employer under s81, the majority of the Court concluded that the claim ought to be taken as one settled by agreement so as to preclude the operation of s42 as it was then worded. However, that case revolved round the question whether the Commissioner had jurisdiction to entertain the employer's application under s42 which then provided that a claim for compensation "which has not been settled by agreement between the parties" might be referred to the Commissioner. Since the deletion of those words from s42 by the Workers Compensation Amendment Act 1992, the question of settlement by agreement is irrelevant to any issue under s42, or indeed to any issue arising on this appeal.

8. In my opinion the appellant's submission is without substance. The clear intent of ss81 and 81A is to require the employer, upon receiving a claim for compensation, to make up his mind promptly whether to pay or to dispute the worker's right to payment. If he fails to do the latter, he is under a clear obligation to do the former and the worker has a corresponding right to receive the payments. The employer in these circumstances still has the right to seek relief from payment under ss81A(5), 86 or 88 and may, on such an application, challenge the worker's right to payment, as the appellant sought to in this case, either by virtue of failure to comply with s32(1) or because the incapacity is not caused by the injury. Those issues are germane to applications of that sort by an employer. The respondent worker in this case had the right to receive payments of weekly compensation for the period covered by the medical certificates from the time allowed in s81(1) and on her application under s42 the only issue was whether the respondent had received a claim for payment of weekly compensation in relation to an injury to a worker employed by it.

9. In my view there is no substance in ground 1. The learned judge held:

"If the failure to make the claim within the period specified in

s32(1)(b) was occasioned by mistake, absence from the State or other

reasonable cause, the validity of the claim is unaffected. Whether

the failure to make a timely claim was due to one of those matters is

a question of fact to be determined by the Commissioner if the claim

is disputed. If it is not disputed, the validity of the claim is not

an issue. The learned Commissioner was correct in so ruling."

I agree. The validity of the claim was not an issue before the learned Commissioner on the respondent's application for enforcement of her rights under s81. It is still open to the appellant, by properly invoking the Commissioner's jurisdiction, to make that an issue.

10. Ground 2 is misconceived. It is true that s32(1) provides that:

"Subject to this Act, a person shall not be entitled to compensation

under this Act for an injury to a worker unless

...

(b) a claim for compensation with respect to the injury has been made

within 6 months after the date of the occurrence of the injury ...",

"The failure to make a claim for compensation within the period

prescribed by section 32(1)(b) does not affect the validity of the

claim if the failure was occasioned by mistake, absence from the State

of the worker, or other reasonable cause."

11. Unlike some statutes of limitation which provide for a judicially granted extension of time if certain matters of excuse are established, the Act, by s38, provides that the claim is not invalidated by a failure to make it within the six month period if the failure was occasioned by any of the circumstances mentioned therein. It requires no judicial order to validate it as suggested by ground 2.

12. The remaining ground is ground 5. The appellant cannot avail itself of the fact that the respondent returned to work for short periods of time from 11 June 1994 as a justification for not making payments after that date. By virtue of s86(1) an employer may terminate or reduce a weekly payment made to a worker only where (among other circumstances) the payment is in respect of total incapacity and the worker has returned to work. As no payment had been made at all, there was no room for the application of s86(1) which only operates to authorise the termination of payments being made. In any event, as Zeeman J points out, this was not a matter which was the subject of a ground of appeal to this Court from the learned Commissioner's decision. I would dismiss the appeal.

ZEEMAN J At all relevant times the respondent was in the employ of the appellant. On 6 April 1994 she lodged with the appellant a claim for workers compensation accompanied by a medical certificate. The claim for compensation did not entirely comply with the requirements of the form prescribed for the purposes of the Workers Compensation Act 1988, as it was then entitled, ("the Act"), s34(1)(a), but it is now accepted by the appellant that it was saved by s34(3). The medical certificate, dated 5 April 1994, satisfied the requirements of s34(1)(b) and by it a medical practitioner certified that the respondent was unfit for any work from 14 March 1994 to 17 April 1994 inclusive.

2. Although the claim was made on 6 April 1994, it concerned an injury allegedly suffered by the respondent in the course of her employment with the appellant on 25 September 1990. As the claim was not made within the period of six months prescribed by the Act, s32(1)(b), the respondent lost any entitlement to compensation pursuant to the Act unless s38 operated to relieve her from the consequences of her failure to make the claim within that period. That section prescribes the circumstances in which the failure to make a claim for compensation within the prescribed time does not affect its validity. As was conceded by the appellant, that section does not require any judicial or other determination because it is self operating.

3. On receiving the claim for compensation, the appellant neither commenced to make a payment of weekly compensation nor took any action to dispute liability under the Act, s81A. Accordingly, on 28 June 1994 the respondent referred the matter to the Workers Compensation Commissioner pursuant to the Act, s42 by an application whereby the Commissioner was asked:

"... to hear and determine the following:-

1 The applicant claims weekly payments under the Workers' Compensation

Act 1988 from the 6th April, 1994 to date in respect of injuries

and/or disease suffered by the applicant on the 25th September, 1990."

4. The application was heard and determined by the Commissioner. During the course of the hearing the following occurred:

1 The appellant submitted that the claim for compensation did not

satisfy the requirements of the Act, s34(1)(a). The learned

Commissioner upheld that submission but further held that by operation

of s34(3) the defects in the form of claim did not affect its

validity.

2 The appellant submitted that the respondent was not entitled to

compensation because a claim for compensation had not been made within

six months after the date of the occurrence of the injury. The

learned Commissioner held that this failure could not be raised by the

appellant because it had not disputed the claim in accordance with the

provisions of the Act, s81A.

3 The appellant attempted to introduce evidence as to the respondent's

medical condition as being relevant to a consideration by the learned

Commissioner of the respondent's entitlement to compensation. The

Commissioner ruled that this evidence was inadmissible because it went

to an issue which was not before him, the appellant not having

disputed the claim.

5. On 22 December 1994 the learned Commissioner dealt with the reference by making the following order:

"After hearing the parties herein on 18th November, 1994 I determine

that the employer is under an obligation to make weekly payments to

the worker in respect of the worker's claim of 6/4/94 and I order that

the employer make weekly payments of compensation together with the

cost of any benefits payable under Division 2 of Part VI of the Act in

respect of periods of incapacity supported by medical certificates

within 28 days of the date of this order."

6. In essence, the effect of the reasons expressed by the learned Commissioner for making that order was that, as the respondent had established as a fact against the appellant the matters referred to in the Act, s81(1) which impose an obligation upon an employer to commence to make a weekly payment and as the appellant was not excused from complying with that obligation by s81(3), the respondent was entitled to receive such a weekly payment until such time as it was lawfully terminated by the operation of, or an order pursuant to, ss81A(5), 86 or 88.

7. The appellant appealed to a judge against the order and determination of the learned Commissioner. The notice of appeal contained a number of grounds. The grounds which were argued asserted that the learned Commissioner:

"1 Erred in law in that there was no application before him by the

respondent seeking the cost of benefits pursuant to Division 2 of

Part VI of the Act.

2 Erred in law in finding that the Appellant had an obligation to make

payments of compensation in circumstances where the respondents (sic)

claim was lodged after the time prescribed by section 32 of the Act

had elapsed.

3 Erred in law in failing to determine whether the Respondents (sic)

claim for compensation dated the 6th day of April 1994 was a valid

claim for compensation.

4 Erred in law in holding that a claim for compensation, valid or not,

was settled by agreement solely as a consequence of the employer not

making an application pursuant to section 81A of the Act.

5 Erred in law in failing to hold that the Respondent was under an

obligation to prove that her incapacity resulted from the accident the

subject of the claim.

...

7 Erred in law in failing to hold that evidence relevant to the issue

of incapacity and its cause was relevant to the Respondents (sic)

application for payments of weekly compensation.

8 Erred in law in failing to hold that an employer who had neither

made an application pursuant to section 81A nor had made any payments

of compensation, had not settled by agreement the workers (sic) claim

for compensation."

8. Before the learned primary judge ground 1 was conceded and the appeal succeeded to that limited extent. Otherwise the appeal failed. The ultimate conclusions reached by the learned primary judge were expressed by him in the following passage appearing in his reasons for judgment (A65/1995 at 7):

"In the present case the employer 'received a claim for compensation

in relation to an injury to a worker employed by the employer.' It

may be that ultimately, the worker will be found not entitled to

compensation because the claim is out of time, or because she is not

incapacitated, or because any incapacity from which she suffered did

not result from the injury, or for any one of a number of reasons; but

the provisions of s81(1) applied to the employer upon its receipt of

that claim. Section 81(3) provides that the only person to whom the

section does not apply is 'an employer who, in accordance with

s81A(1), disputes liability to pay compensation by way of weekly

payments'. The appellant was not such a person. Section 81(1)

requires an employer who 'has received a claim for compensation in

relation to an injury to a worker employed by the employer' to

'commence making weekly payments' within the time prescribed by the

subsection. The appellant was such a person and the learned

Commissioner ordered it to commence weekly payments in accordance with

s81(1). He was correct in so ordering. Should the employer wish to

dispute liability to make weekly payments he must do so in accordance

with s81A(1) or failing that in accordance with s81A(5) in respect of

payments after the date of that application. Otherwise, weekly

payments must continue until their termination is authorised under

ss86, 87(1) or 88."

9. The appellant has appealed to this Court. The notice of appeal contains the following grounds:

"1 That the learned Judge erred in law in finding that a claim for

compensation made outside the period prescribed by Section 32 (1) (b)

of the Workers Compensation Act 1988 (hereinafter the 'Act') was a

valid claim unless the employer took action under Section 81 A of the

Act to dispute the claim.

2 That the learned Judge erred in law in failing to hold that a claim

for compensation made outside the period prescribed by Section 32 (1)

(b) of the Act was invalid in the absence of an Order by the Workers

Compensation Commissioner excusing such delay pursuant to Section

38 (1) of the Act.

3 That the learned Judge erred in law in holding that a claim for

compensation which had not been disputed by the employer pursuant to

Section 81 A of the Act was settled by agreement.

4 That the learned Judge erred in law in failing to hold that an

employer who had neither made an application pursuant to Section 81 A

of the Act nor had made any payments of compensation had not settled

by agreement the workers (sic) claim for compensation.

5 Alternatively, that the learned Judge erred in law in failing to

hold that the appellant's obligation to make payments of compensation

ceased on or about the 11th day of July 1994 and that thereafter the

respondent would be required to produce evidence of incapacity to

establish liability to pay compensation."

10. Much attention was given by the learned Commissioner and by the learned primary judge to the question as to whether, by the failure of the appellant to invoke the provisions of s81A, the respondent's claim for compensation had been "settled by agreement" as that expression was construed by this Court in Precise Timbers Pty Ltd v Burgess [1991] TASSC 20; (1991) 3 Tas R 124.

11. With respect to the learned primary judge, I do not agree with him that Precise Timbers Pty Ltd v Burgess (supra) is authority for the proposition that a failure on the part of an employer to dispute liability, without more, resulted in the relevant claim for compensation having been settled by agreement. In my view that case is authority for the proposition that where an employer commenced to make a weekly payment without disputing liability in the manner provided for by the Act, the claim for compensation had been settled by agreement for the purposes of s42 in its then form. I explained my reasons for that view in Chorley v Hazell Pty Ltd A17/1993 (noted at (1993) 2 Tas R 488 (NC 6)) at 2 - 5 and adhered to them in FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd A14/1992 (noted at (1992) 1 Tas R 404 (NC 5) at 8 and Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101 at 109.

12. In any event, I do not consider that there is any real assistance to be drawn from Precise Timbers Pty Ltd v Burgess (supra). It concerned the construction of the expression "which has not been settled by agreement between the parties" which then appeared in s42. That section then conferred upon the Commissioner jurisdiction to entertain an application concerning a claim for compensation only if that claim had not been settled by agreement. Section 42 does not now contain any such limitation. I do not consider that the entitlement of the respondent to receive a weekly payment of compensation depends upon, or is affected by, her ability to establish that her claim to receive it has been settled by agreement. It follows that the errors asserted by grounds 3 and 4 are irrelevant to the disposition of this appeal.

13. The determination of the present appeal is to be governed by the proper construction of the relevant sections of the Act and not by reference to whether the respondent's claim was settled by agreement. At the relevant time, the Act contained the following provisions:

"81 (1) Where an employer has received a claim for compensation in

relation to an injury to a worker employed by the employer and the

worker's first pay day after receipt of that claim -

(a) is not later than 14 days after the receipt of that claim, the

employer must

(i) if it is reasonably practicable to do so, commence making weekly

payments to the worker on the first pay day; or

(ii) in any other case, commence making weekly payments to the worker

not later than 14 days after receipt by the employer of the worker's

claim for compensation; or

(b) is later than 14 days after the receipt of that claim, the

employer must commence making weekly payments of compensation on that

pay day.

(2) Subject to subsection (3), an employer who fails to comply with

subsection (1) is guilty of an offence.

Penalty: Fine not exceeding 20 penalty units and, in the case of a

continuing offence, a further fine not exceeding 5 penalty units for

each day during which the offence continues.

(3) This section does not apply to an employer who, in accordance with

section 81a(1), disputes liability to pay compensation by way of

weekly payments.

...

81a (1) An employer who disputes liability

(a) to pay compensation by way of weekly payments for an injury

referred to in section 81(1); or

...

must, within 14 days of receiving the claim for compensation in

respect of the injury to the worker

(c) serve the worker with written notice that the employer disputes

liability

(i) to pay compensation by way of weekly payments and must inform the

worker of the reasons for disputing liability; or

...

(d) refer the matter to the Commissioner.

(2) An employer who refers a matter to the Commissioner under

subsection (1) must, at the time of referring the matter to the

Commissioner, advise the Commissioner in writing whether or not weekly

payments are being made to the worker pending determination of the

matter by the Commissioner.

...

(3) Where a matter is referred to the Commissioner under

subsection (1), the Commissioner must

(a) if the Commissioner considers that weekly payments should be made,

order the employer to make weekly payments from such date as the

Commissioner determines; or

...

(c) if the Commissioner considers that a genuine dispute exists

concerning the liability of the employer to pay compensation by way of

weekly payments, determine that compensation is not to be paid by the

employer; or

...

(4) The fact that the Commissioner has determined under subsection (3)

that weekly payments should be made, ... is not to be taken into

account by the Commissioner in any other proceedings under this Act.

(5) Notwithstanding that liability has not been disputed in accordance

with subsection (1), an employer who wishes to dispute liability to

continue to pay compensation by way of weekly payments for an injury

referred to in section 81(1) or to pay the cost of any benefits

payable under Division 2 of Part VI in respect of the injury may, at

any time after the expiration of the period referred to in

subsection (1) of this section, refer the matter to the Commissioner."

14. Section 81(1) cannot be read literally. It cannot require that any worker who makes a claim for compensation be paid a weekly payment. The Act, PtVI provides for two types of compensation, namely what is described as basic compensation, which includes weekly payments and lump sum payments in respect of death and specified injuries, and what is described as additional compensation, in respect of medical and other services and travelling expenses. A claim for compensation may be made in circumstances where the worker does not assert an entitlement to a weekly payment at all because no incapacity for work has resulted from the injury. The worker may merely seek payment in respect of medical or other services necessitated by the injury and payable pursuant to the Act, PtVI, Div2. It cannot be the case that s81(1) obliges an employer to commence making a weekly payment to such a worker. It follows that s81(1) is subject to some implied limitations. At the very least it only applies to a claim for compensation which in its terms asserts some incapacity for work because, absent such incapacity, the Act makes no provision for a weekly payment.

15. The prerequisites for the imposition of the obligation provided for by s81(1) are the following:

1 That the employer has received a claim for compensation.

2 That the claim is in relation to an injury to a worker employed by

the employer.

16. Each of those requirements requires separate consideration. The definition of "claim for compensation" contained in the Act, s3(1), insofar as it extends the meaning, has no application to s81(1) (FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd (supra) at 7). The claim for compensation referred to in s81(1) is a claim for compensation as provided for by s34(1). At the relevant time, s34(1) provided that a claim for compensation was to be in the prescribed form and was to be accompanied by a prescribed certificate from a medical practitioner. If both documents were not given at the same time, then s34(2) operated so that the claim for compensation was deemed not to have been made until the last of the documents had been given to the employer. It follows that upon the employer having received a claim in the prescribed form and a prescribed medical certificate the employer received a claim for compensation for the purposes of s81(1). If that medical certificate certified to a period of incapacity for work it was a claim to which s81(1) applied.

17. The requirement that the claim relates to an injury to a worker employed by the employer is a requirement concerning the content of the claim rather than an objective requirement. If the facts alleged in a claim for compensation amount to an assertion that the claim relates to an injury to a worker employed by the employer then this requirement is satisfied. It forms no part of this requirement that the injury in fact is one in respect of which compensation is payable under the Act. The appellant has contended otherwise.

18. The appellant submitted that, despite the statutory scheme provided for by ss81 and 81A, an employer may fail to make a payment of weekly compensation upon receipt of a claim for compensation asserting incapacity for work but not invoke the provisions of s81A and place the onus upon the worker to refer the matter to the Tribunal or, at the relevant time, the Commissioner. The appellant further submitted that upon such a reference the Tribunal has, or at the relevant time the Commissioner had, jurisdiction to embark upon a consideration of all questions concerning the worker's entitlement to compensation.

19. That is contrary to the intent evinced by the statutory scheme. The receipt by an employer of a claim for compensation whereby a worker employed by the employer asserts that he or she has suffered an injury resulting in incapacity for work, accompanied by a relevant medical certificate, is sufficient to impose upon an employer the obligation to commence making a weekly payment. The employer suffers no injustice as a result. If an employer is minded to raise any question as to the entitlement of the worker to receive a weekly payment, whether as the result of the absence of notice of injury, lateness of the claim for compensation, disputing injury or incapacity or any other matter, the employer can effectively do so under s81A. A failure of the employer to do so means that it is under an obligation to commence making a weekly payment.

20. Section 81 is a section enacted for the protection of injured workers. It imposes an obligation on employers but must be construed as conferring a corresponding right on the part of workers. Once the prerequisites to the obligation imposed by s81(1) have been satisfied, the worker has the right to the commencement of a weekly payment. Merely because a worker has that right, it does not follow that all questions relevant to his or her entitlement to compensation have been determined in his or her favour. The entitlement of the worker to compensation remains open to challenge by the employer on an application under s81A(5). An employer who fails to act in accordance with s81A(1) but who wishes to dispute liability to pay compensation, must nevertheless commence to make a weekly payment but may thereafter, on an application made under s81A(5), raise any matter which the employer might have been able to raise under s81A(1).

21. The reasons which I have expressed effectively deal with all grounds of appeal, other than ground 5. I have concluded to the contrary of the proposition contended for by ground 1. Ground 2 effectively was abandoned by the appellant during argument, but in any event any question of the lateness of the claim was irrelevant to the entitlement of the respondent to the commencement of a weekly payment. It could have been made relevant on a reference under s81A(1) and may still be made relevant on a reference under s81A(5). I have concluded that the matters raised by grounds 3 and 4 are irrelevant.

22. Ground 5 may be dealt with briefly. This ground was not raised in the notice of appeal from the learned Commissioner. Not surprisingly the learned primary judge did not deal with the matter. The fact that it was the subject of some argument during the course of submissions before him does not affect the position that it was not raised by the appeal which he was required to consider. Strictly speaking that may be sufficient to dispose of this ground. However, I will say something about its merits. The factual basis upon which this ground was argued was that subsequent to making her claim for compensation the respondent returned to work on two occasions, albeit for quite short periods. The appellant argued that even if it had been required to commence to make a weekly payment, it had not been required to continue to make a weekly payment beyond 11 July 1994, the day on which the respondent first returned to work.

23. In support of its submission, the appellant relied on Chorley v Hazell Pty Ltd (supra) and Brambles v Pincott A30/1994. However those cases concerned the nature of the onus carried by a worker who has returned to work and subsequently claims to suffer from a further period of incapacity. The appellant was obliged to commence a weekly payment and was required to pay the same each week subject to the provision of a medical certificate certifying to incapacity. It was required to continue that payment until its termination or reduction was authorised by the Act or an order of the Commissioner. The appellant sought to rely on s86(1)(a). However that cannot avail the appellant. It only applies where a weekly payment is being made. Ground 5 fails.

24. It follows that, although I would not adopt the same reasoning, the ultimate conclusion reached by the learned Commissioner and the learned primary judge concerning the respondent's entitlement to the commencement of a weekly payment was correct. The only issue for determination by the learned Commissioner was whether the pre-conditions to payment, prescribed by s81(1), had been established. He correctly concluded that they had been. No further issue fell for determination by the learned Commissioner. I would dismiss the appeal.

SLICER J The appellant was the employer of the respondent who, on 6 April 1994, made a claim for workers compensation with respect to an accident claimed to have occurred on 25 September 1990. The claim was not made within the period of six months prescribed by the Workers Compensation Act 1988, s32(1)(b) ("the Act").

2. The employer made no response to the claim, neither commencing to make the weekly payments nor taking any action to dispute liability. The respondent referred her claim to the Workers Compensation Commissioner seeking:

"... weekly payments under the Workers Compensation Act 1988 from the

6th April, 1994 to date in respect of injuries and/or disease suffered

by the applicant on the 25th September, 1990".

3. At the hearing the appellant contended that no award of compensation could be made because of the operation of the Act, s32(1)(b). The learned Commissioner determined that the employer was precluded from raising the issue, because it had not disputed the claim in accordance with the provisions of the Act, s81A. The learned Commissioner further determined that, for the same reason, evidence as to the respondent's medical condition sought to be tendered by the appellant, was inadmissible. The Commissioner ordered the employer to make weekly payments "in respect of periods of incapacity supported by medical certificates within twenty-eight days of the date of (the) order".

4. The appellant appealed to a judge against the determination on a number of grounds. The appeal succeeded, in part, on a ground which is not relevant to these proceedings. The learned primary judge dismissed the grounds of appeal relating to the question of the failure to dispute liability and its effect on the right to introduce evidence and take objection as to time limitation. His Honour held that: (page 64)

"The effect of s81 prior to the 1992 amendment and the effect of that

section and s81A after the amendment, was and is that where an

employer receives a claim for compensation and does not dispute it as

provided by those sections, he must commence making weekly payments."

1 That the delivery of a claim for compensation creates an entitlement

to payments by virtue of the Act, s81. Those payments must continue

until stoppage is authorised pursuant to the provisions of ss81A(5),

86, 87(1) or 88(1).

2 Failure to make a claim within the period specified by s32(1)(b)

does not invalidate the claim since s38(1) provides that such failure

"does not affect the validity of the claim if the failure was

occasioned by mistake, absence from the State ... or other reasonable

cause."

3 The provisions of s81 apply to an employer upon receipt of a claim

and since s81(3) provides that the only person to whom the section

does not apply is "an employer who in accordance with s81A disputes

liability" a non disputing employer, being bound by s81, has no right

to raise the question of limitation or call evidence disputing the

medical condition.

5. The notice of appeal raises the following issues:

1 Whether a claim made outside the prescribed period is a valid claim,

unless disputed (grounds 1 and 2).

2 Whether a claim for compensation is, in the absence of payment or

notification of dispute, settled by agreement in accordance with the

Act, s81A (grounds 3 and 4).

3 Whether, if there was obligation to pay, such payments ceased on the

date of original return to work (11 July 1994) and any future

entitlement required further evidence of incapacity (ground 5).

4 Whether in the absence of objection the respondent was nevertheless

required to establish that present incapacity resulted from the

original injury (ground 6).

6. Central to the question of entitlement is the import of the Act, s81. It is contained in the Act, PtVII under the heading "Payment of Compensation and Related Matters". It does not, of itself, provide for entitlement. That is established by reference to PtIII. It does, however require the employer to take certain action upon receipt of a claim and renders the employer liable to sanction in the event of non-compliance. The relevant portions of the section provide:

"81 (1) Where an employer has received a claim for compensation in

relation to an injury to a worker employed by the employer and the

worker's first pay day after receipt of that claim

(a) is not later than 14 days after the receipt of that claim, the

employer must

(i) if it is reasonably practicable to do so, commence making weekly

payments to the worker on the first pay day; or

(ii) in any other case, commence making weekly payments to the worker

not later than 14 days after receipt by the employer of the worker's

claim for compensation; or

(b) is later than 14 days after the receipt of that claim, the

employer must commence making weekly payments of compensation on that

pay day.

(2) Subject to subsection (3), an employer who fails to comply with

subsection (1) is guilty of an offence.

Penalty: Fine not exceeding 20 penalty units and, in the case of a

continuing offence, a further fine not exceeding 5 penalty units for

each day during which the offence continues.

(3) This section does not apply to an employer who, in accordance with

section 81a(1), disputes liability to pay compensation by way of

weekly payments.

... "

7. The liability to pay is created, not by the operation of s81, but by the occurrence of an injury and the furnishing of a certificate (s69). Section 81 requires payment to be made within a specified time and imposes sanction for non-compliance. The effect of subs(3) is to exclude from liability of sanction an employer who disputes entitlement in accordance with s81A. If an employer, on receipt of the claim, makes payment then it can be said that the claim has been settled by agreement (Precise Timbers Pty Ltd v Burgess [1991] TASSC 20; (1993) 3 Tas R 124) not because of anything intrinsic within s81 but because the employer has accepted the claim and honoured the obligation. Payment made outside the time limits prescribed by s81 would, nevertheless, be regarded as affording settlement by agreement. Previously absence of settlement brought into effect the operation of s42 which, before amendment by No 50 of 1992 excluded a claim, "which has not been settled by agreement between the parties". The present s42 makes no reference to the term and a claim accepted by the employer affects the procedures which must be followed in relation to continuance, cessation or variation of payment.

Section 81A requires an employer, who disputes liability, to serve the worker written notice of disputation within fourteen days setting out reasons for disputing liability (or to pay benefits and dispute liability) and refer the matter to the Tribunal. That procedure permits the Tribunal to authorise the Registrar to make a determination (s81A (2A)), receive advice (2B) and make an order giving effect to the determination (2C). Section 81A(5) entitles an employer, who has not disputed liability within the time or in the manner specified, to nevertheless refer the matter for determination. Any interrelationship between ss81 and 81A is procedural. An employer who disputes liability may or may not have complied with s81. Section 81A operates whether or not there has been compliance with s81. Notice of disputation simply precludes risk of sanction. Section 81 makes no reference to the payment of medical expenses or any of the other benefits payable under Div2 of PtVI. The right to receive such payments is created other than by s81. There is a line of authority which supports the respondent's contention that s81 creates an entitlement separate from and more extensive to that contained elsewhere in the legislation. In the United Kingdom early legislation (Workmen's Compensation Act 1923, s14 and Workmen's Compensation Act 1925, s12) provided:

"... an employer shall not be entitled otherwise than in pursuance of

an agreement or arbitration to end or diminish a weekly payment."

The provision was held to entitle the continued receipt of weekly payments, even though it was subsequently determined that there was no entitlement. Lord Buckmaster stated the purpose of the provision in Anchor Donaldson Limited v Crossland (1929) AC 297 at 302 as:

"... to secure that if weekly payments are, in fact, being made to a

workman, they shall not be ended apart from agreement or arbitration

except in the cases that are specified."

But that case concerned the power to enforce an interim award made by an arbitrator pending final resolution. There had been an entitlement already established. A similar approach was taken with respect to equivalent Victorian legislation in Edgar v Pennell [1958] VicRp 72; (1958) VR 450.

The Tasmanian legislation imposes a duty on the employer to commence making weekly payments upon receipt of a claim for compensation. That cannot be so. There may be a claim for compensation in a form other than the payment of weekly payments. Receipt of claim does not necessarily require payment. In Western Australian Coastal Shipping Commission and Stevedoring Employers of Australia Ltd v Wallner (1979) 26 ALR 591, Brennan J had difficulty in reconciling the different approaches taken with respect to similar legislation to the purpose and effect of such provisions. He was concerned with the meaning of the Workmen's Compensation Ordinance (NT), s7A which provided:

"(1) An employer shall not, except in accordance with this Ordinance,

an Act or determination of the Tribunal, discontinue, withhold or

diminish a weekly or other payment due under this Ordinance to a

person."

"Section 7A is a penal provision. The employer is prohibited, under

penalty, from engaging in the conduct which sub-s (1) specifies. It

does not in terms create a civil liability enforceable for the benefit

and at the suit of a workman. Its terms may be contrasted with the

sections of the Ordinance which impose upon an employer a liability to

pay compensation, and which confer upon a workman a reciprocal right

to receive it ... It is nevertheless a provision which is calculated

to ensure that an employer pay money to a workman, and it is a

question of legislative intent, to be inferred from the section in the

light of all its surrounding circumstances whether a corresponding

civil right is conferred upon the workman ... At first sight, s 7A

appears to confer upon the workman (or other beneficiary) a right to

the payments which the section requires the employer to make.

In the employers' submission, however, s 7A does not give rise to a

civil right to the payments therein mentioned. The employers'

submission would find the employers' civil liability to make those

payments in other provisions of the Ordinance; and their submission is

that the workman must rely on those other provisions alone as the

charter of his rights.

...

This construction would deny any effect to s 7A save the imposition of

a criminal penalty as a sanction to secure the payment of moneys due

to a workman under other provisions of the Ordinance. The section,

thus construed, would have some work to do: it would enhance the

remedies to protect the workman's rights, though it would not extend

those rights. The question in issue in this appeal is whether s 7A

extends the workman's rights as well as protecting them."

8. Having discussed the differing cases on the point he concluded at 596:

"The history of the provision shows that its antecedents were intended

to secure to a workman a payment which, although it may ultimately

prove not to have been payable, is nevertheless expected to be paid in

the ordinary course of making payments the liability for which has

been accepted by the employer. The structure of the section shows

that, although the liability to make the payment in question must be

referable to the Ordinance, the operation of the section extends to

payments beyond those which other sections of the Ordinance make

payable."

However, on my understanding of the approach taken by Brennan J the entitlement was not absolute. Brennan J concluded at 596:

"In my opinion, the section extends to a payment where the liability

upon which the workman (or other beneficiary) relies to make it

payable is a liability accepted or admitted by the employer, whether

the payment is in truth due or not, and whether or not the payment is

ultimately held to have been due. If an employer wishes to resile

from or qualify his acceptance or admission of liability, the section

requires him to seek the approval of the Tribunal, or to be able to

invoke the protection of an Act, or to be within an exemption which

overrides the statutory obligation which s 7A superimposes upon the

employer's acceptance or admission of liability." (My emphasis.)

The Tasmanian legislation does not require acceptance or admission of liability. However, its effect does not supplant "an exemption which overrides the statutory obligation". Section 81 imposes a duty to pay where the entitlement exists in accordance with the Act. The scheme of the Act provides for the establishment of entitlement upon the giving of notice and the provision of the appropriate certificate. If, on the face of the application or reference the claim can be seen to be valid, then entitlement arises at least until notice of disputation or until the Commissioner or Tribunal determines otherwise. If there is no proper notice or certificate then no entitlement is created by virtue of s81. Section 81 is not independent of the Act or outside of its parameters. In this case the notice and the accompanying certificates were, on their face, statute barred. Section 81 imposes a duty, not in its own right, but because it recognises that a claim, together with the necessary certificate, creates entitlement unless and until certain events occur.

9. The claim for compensation was dated 6 April 1994. It claimed the occurrence of a compensable injury but provided no date for that occurrence, instead stating that the event affording entitlement was notified on 25 September 1990. The medical certificate dated 5 April 1994 stated that the incident had occurred "?18 months ago" and subsequent certificates referred either to the date of occurrences being May 1990, fifteen to nineteen months ago, or contained no information. The application dated 28 June 1994, referring the matter to the Commissioner, claimed weekly payments "in respect of injuries and/or disease suffered by the applicant on 25 September 1990". The matter was referred for consideration by the Commissioner, by virtue of the Act, s42. That section, by virtue of subss(4) and (5), required the Commissioner to determine "the persons who appear to have an interest in the settlement of the claim for compensation" and the Registrar to serve such persons with a notice containing particulars of the claim.

10. Section 43 permitted the obtaining of further information from the applicant or an interested person. The Commissioner was required to be satisfied that the conditions giving rise to entitlement have been fulfilled. Doubtless, in most cases the documentation comprising notification, application and certification will afford sufficient basis for the making of an order and a person contending otherwise should not be permitted to advance other matters or tender evidence unless there has been compliance with statutory provisions prescribing the rights of and procedures to be followed by an opposing party. But in this case the Commissioner was required to determine the claim on the basis of the relevant material tendered by the respondent. That material disclosed that the claim was made three years and six months after the date of the claimed injury. The Act, s32(1)(b) provides:

"32 (1) Subject to this Act, a person shall not be entitled to

compensation under this Act for an injury to a worker unless

...

(b) a claim for compensation with respect to the injury has been made

within 6 months after the date of the occurrence of the injury ... ."

11. The matter referred to the Commissioner was a claim for compensation which, on the respondent's case, was precluded by statute. The limitation was not dependent on the approach taken, or procedures followed, by the employer. Failure to comply with the statutory requirement is an "absolute bar to ... entitlement to compensation" (Wright J in Pasminco Metals EZ Risdon v Szerkeres 40/1991 at 3. It is a precondition to entitlement (Chorely v Hazel Pty Ltd 17/1993; Harris v TSS Pty Ltd and Sun Alliance Insurance Group 46/1992). The Act, s38 governs the effect of a failure to give notice within the prescribed time. The relevant portion of that section provides:

"38 (1) The failure to make a claim for compensation within the

period prescribed by section 32(1)(b) ... does not affect the validity

of the claim if the failure was occasioned by mistake, absence from

the State of the worker, or other reasonable cause.

(2) Without limiting the generality of the expression 'reasonable

cause' in subsection (1), that expression includes

(a) the making of a payment to a worker that he believes to be a

payment of compensation under this Act;

and

(b) any representation that is made to a worker that he believes is

made by or on behalf of his employer to the effect that compensation

under this Act will or will not be payable.

(3) Any dispute relating to the failure of the worker to make a claim

for compensation within the period prescribed by section 32(1)(b) ...

may be referred by either party to the dispute to the Commissioner for

determination."

12. It was the for the respondent to establish that the failure was occasioned by mistake, absence or reasonable cause. In some circumstances, the conduct of the employer might preclude the claim that there was no reasonable cause (s38(2)). But the Commissioner must be satisfied that the claim is validated by some prescribed circumstance. The appellant, as a person interested, was entitled to bring to the attention of the Commissioner the legal consequence of the factual material comprised in the application. The Commissioner was then required to receive material capable of establishing the existence of the preconditions. The position would be different if the material disclosed, on its face, the existence of a valid claim. The employer might challenge the accuracy of that material. In such a circumstance, it would be necessary to give notice of disputation in accordance with ss81A(1) or 81A(5). In the event of such notice the dispute is referred by means of s38(3). But such was not the circumstance with which the Commissioner was dealing.

13. Implicit in the respondent's argument is the proposition that once payment is made by an employer, then the claim is settled and that similarly the absence of disputation is conclusive of acceptance. Such does not follow and Precise Timbers Pty Ltd v Burgess (supra) is not authority for the proposition that failure to dispute liability, without more, results in a settlement of claim. Payment, absent disputation, involves acceptance and requires the employer to initiate action and follow procedures if any alteration is sought (Chorley v Hazell Pty Ltd (supra)). The legislation attempts to encompass liability, procedure and presumptions or entitlement as a consequence of the combination of liability and procedures. It uses a methodology designed to achieve certainty, fairness and a recognition of competing rights and interests. It has not always been successful in doing so. It establishes entitlement by virtue of occurrence of injury and the furnishing of documentation and certification. But failure to dispute does not, of itself result in agreement. An agreement evidenced by payment alters the procedures which must thereafter be followed, but the agreement exists by virtue of acceptance not by failure to comply with a statutory provision. Acceptance or agreement is a question of fact to be determined in each case (Precise Timbers Pty Ltd v Burgess (supra), Green CJ at 128). In any event Precise Timbers Pty Ltd v Burgess (supra), was concerned with the operation of ss81 and 42 before the amendment, which excluded the words "which has not been settled by agreement between the parties". Grounds 3 and 4 are irrelevant to the issues raised in this appeal.

14. Although the issue raised by this ground of appeal had not been the subject of a ground of appeal to the learned primary judge, it was argued by both parties before him. The notice of appeal states:

"5 Alternatively, that the learned Judge erred in law in failing to

hold that the appellant's obligation to make payments of compensation

ceased on or about the 11th day of June 1994 and that thereafter the

respondent would be required to produce evidence of incapacity to

establish liability to pay compensation".

15. The respondent returned to work on 11 July 1994 but was absent between 21 and 25 July. She returned to work on that day and continued in employment until 5 August. She had not returned to employment as of the date of hearing. The medical certificates supplied on her behalf stated that she was unfit for work for the periods: 27 May 1994 until 10 July 1994, 11 July 1994, and from 21 July 1994 until 16 September 1994 and thereafter until the date of hearing.

16. The claim for compensation was made on 6 April 1994 and the application to the Commissioner on 28 June 1994. The claim was for weekly payments from 6 April to the date of application. The order made on 22 December required the making of payments as and from 6 April. Her subsequent absence and delivery of medical certificates after return to work was an assertion of her right to "receive further weekly compensation based on a recurrence of her injury resulting in further incapacity" (Zeeman J in Chorley v Hazell Pty Ltd (supra) at 4, see also Brambles v Pincott A30/1994). The legislation permitted the course taken by the respondent. The appellant was required to continue making payments unless and until termination or reduction was permitted by the Act or ordered by the Commissioner. No weekly payments were made so that the provisions of s86(1)(a) have no application. The appellant was required to give notice but did not so do. The employer is not entitled to require an employee to prove afresh incapacity in circumstances such as those giving rise to this appeal. Ground 5 ought not to succeed.

17. The notice of appeal was amended by consent of the parties so as to include:

"6 That the learned trial judge erred in law in failing to hold that

where the appellant had failed to dispute liability under s81A(1), nor

make payments of weekly compensation, the respondent could not succeed

on her application without establishing on the balance of

probabilities that any incapacity she had resulted from the injury,

the subject of her claim."

18. The contention of the appellant is that once the "matter" was referred to the Commissioner, it constituted notice that the claim for entitlement was in dispute. Thereafter, it was submitted, the Commissioner was obliged, by virtue of the Act, s69, to determine whether there existed incapacity and whether the relevant certificate had been furnished. The argument advanced was that failure to require the respondent to adduce evidence to establish incapacity or to permit the appellant to call contrary evidence constituted error. There is no merit in the argument. Assuming that a claim not statute barred was before the Commissioner, the referral and the certificate were (subject to adequacy of form) sufficient to permit the Commissioner to make the order. Ground 6 should be dismissed.

19. The learned Commissioner was not entitled to make the order when, on the basis of material placed before him by the respondent, the claim was barred by statute. The appellant was not obliged to give notice of disputation in accordance with the Act, s81A as a pre-condition to the operation of the statutory limitation. The appellant was, as an interested person, entitled to bring to the attention of the Commissioner the legal consequence of the factual matters raised in the respondent's application. The Commissioner was required to be satisfied that the conditions predicated by s32(1)(b) were existant before effect could be given to the operation of s38(1). Grounds 1 and 2 are made out.

20. I would uphold the appeal, set aside the order in toto and order that the matter be reheard according to law.