Pursuant to s81A(3)(c) of the Act, weekly payments of compensation are not to be paid by the employer to the worker from the date of these orders.

Pursuant to s 81A(3)(d) of the Act, the cost of benefits payable under Division 2 of Part VI of the Act are not to be paid from the date of these orders, with the exception of pain psychology treatment.

Pursuant to s 81A(3)(b) of the Act the employer is to pay the cost of pain psychology treatment from the date the employer's s81A referral was heard.

Workers compensation - Employer disputing ongoing liability to pay compensation - Jurisdictional issue - Whether s 69(13) available to employer - Further certificate as to treatment, not incapacity - Tribunal has jurisdiction - Whether evidence relied upon supports reasonably arguable case.

Workers Rehabilitation and Compensation Act 1988; ss 69(13), 81A.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review [2009] HCA 41;

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28;

The Queen v A2 [2019] HCA 35.

The decision has been anonymised for the purpose of publication.

1. The worker made a claim for workers compensation in September 2024. He was an early childhood educator and an incident occurred where a child jumped on his back from behind. He experienced back pain.
2. The claim for compensation was accepted, and he received payments of workers compensation from his employer.
3. The initial workers compensation certificate of capacity which was dated 23 September 2024 certified the worker to have no capacity for any work from 23 September 2024 to 27 September 2024. A continuing workers compensation certificate of capacity dated 5 December 2024 certified the worker to have capacity for pre-injury work with restriction for the period 21 November 2024 to 5 December 2024.
4. Thereafter, the worker delivered to his employer a continuing workers compensation certificate of capacity dated 22 August 2025 which certified the worker to be fit for pre-injury work from the date of the certificate.
5. Another continuing workers compensation certificate of capacity dated 14 November 2025 was delivered to the employer by the worker. Again, the worker was certified to be fit for pre-injury work from the date of the certificate. This certificate noted the worker's current symptoms to be:

?intervertebral join injury - muscular/back pain.

The certificate also indicated that the diagnosis included a secondary injury as a result of the initial compensable injury, specifically:

Anxiety is now a secondary result of the primary injury to the neck and back.

1. In the certificate dated 14 November 2025, under the heading 'Injury Management/Treatment' the certifying practitioner made a number of recommendations for medical and allied health treatment, and indicated that he had referred the worker to a sports physician, a pain clinic, a pain specialist, a massage therapist and an acupuncturist.
2. The employer, pursuant to s 69(13) of the Workers Rehabilitation and Compensation Act 1988 (the Act) elected to treat the certificate dated 14 November 2025 as a claim for compensation to which s 81A of the Act applies. On 19 January 2026, the employer referred to the Tribunal the dispute in relation to its ongoing liability to pay compensation to the worker.
3. Where an employer makes a referral to the Tribunal under s 81A of the Act, the Tribunal is required to determine whether or not the employer has demonstrated that there is a reasonably arguable case in respect of the dispute put forward by the employer.
4. At the commencement of the hearing of the employer's s 81A referral I raised with the employer a question in relation to whether the Tribunal had jurisdiction to hear the referral, and received further submissions in relation to that question.
5. There are therefore two issues that I need to determine. The first is whether the Tribunal has jurisdiction to hear this matter. If I determine that the Tribunal does have jurisdiction, I then need to make a decision about whether the employer has shown there is a reasonably arguable case to dispute its ongoing liability to pay compensation to the worker.

1. Where a worker makes a claim for compensation that is accepted by an employer, the employer's liability to pay weekly payments to the worker continues whilst the worker presents medical certificates in the prescribed form to the employer that support the existence of incapacity resulting from the original injury: See Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134 (Thornton)
2. However, where there is a gap in certification, as contemplated by s 69(13) of the Act, an employer may dispute its ongoing liability to pay compensation to the worker: See Federal Hotels Ltd v Webb [2013] TASSC 36 (Federal Hotels).
3. Section 69(13) of the Act provides as follows:

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.

4. In the present case the certificate dated 14 November 2025, upon which the employer has based its s 81A referral, is a certificate that does not certify that the worker is incapacitated for work.
5. The question I raised in respect of the Tribunal's jurisdiction is whether or not an employer may make a referral to the Tribunal under s 81A of the Act, using s 69(13), where there is no period of incapacity specified in the 'further certificate' delivered by the worker to the employer.
6. The employer notes that s 69(13) is silent as to whether the 'further certificate' for the purposes of the section needs to certify a period of incapacity.
7. The employer submits that the case law does not deal with any analogous situations, in that cases that have considered the effect of s 69(13) are cases where the subsequent certificate certified a period of incapacity for work, whether partial or total: See Thornton, Federal Hotels and State of Tasmania v Parsons [2002] TASSC 59 (Parsons).
8. As a matter of statutory interpretation, the employer quite rightly submits that the meaning of s 69(13) is to be determined according to the ordinary and grammatical meaning of the text having regard to the context and purpose of the surrounding sections and of the legislation as a whole (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review [2009] HCA 41 at [4] and [47] and Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 at [69]. The employer also correctly says that a purposive approach is to be taken, and context is to be considered at the first stage with a process of construction, citing The Queen v A2 [2019] HCA 35 at [32] - [37].
9. The employer says that s 69(13) only requires a further certificate to be served more than 14 days after the expiration of the period specified in the prior certificate, and that there is no requirement that the further certificate certifies a period of incapacity. The employer also notes that, unlike the medical certificate first described in s 69(13) as being a 'medical certificate provided... under this section', the 'further certificate' need not be provided 'under [s 69]'.
10. On that basis, the employer says that the ordinary meaning of the words in s 69(13) differentiate between the certificate in which a period of incapacity is specified and the further or subsequent certificate, meaning that the further certificate does not need to be a certificate pursuant to s 69(1) of the Act.
11. The employer says that giving the word 'certificate' its ordinary meaning in the context of the Act it must be a document in the form approved by the Board, consistent with the requirements of s 34(1)(b). There is no requirement in s 34 that the worker's capacity needs to be the subject of certification for a certificate to be valid, and the employer says that having regard to s 34(3) such an omission would arguably not affect the validity of any claim for compensation supported by such a certificate.
12. The employer therefore says that the delivery of a further certificate in the approved form is what it is contemplated by s 69(13), and would be sufficient to permit the employer to refer the question of its ongoing liability to the Tribunal under s 81A, irrespective of whether the certificate certifies any incapacity for work.

1. Section 69(13) permits an employer to proceed under s81A after it receives a 'further certificate'. I accept the submission that, on its face, this is a reference to a certificate in the approved form in accordance with the Act.
2. A medical certificate in the approved form is not a claim for compensation: See Parsons at [53] and [73]. However, as Blow CJ said in Federal Hotels at [25], the plain wording of s69(13) clearly requires, when it applies, medical certificates to be treated as something that they are not, namely claims for compensation in the s80A sense.
3. Although the Act is, overall, legislation that is beneficial to workers, s 69(13) was inserted into the Act to assist employers. The plain words of s 69(13) do not require that the 'further certificate' that is received by the employer must certify as to the existence of a period of incapacity before the employer can proceed with a dispute under s 81A.
4. An employer's liability to pay compensation by way of benefits under Division 2 of Part VI may be ongoing, notwithstanding that entitlement to weekly payments of compensation has ceased: See ss 75(2) and 75(2AA) of the Act. To permit an employer to dispute its ongoing liability to pay compensation by way of benefits under Division 2 of Part VI of the Act, irrespective of whether there is certified incapacity for work, is consistent with the apparent intent of s69(13).
5. There was a gap of more than 14 days between expiration of the period of incapacity in the certificate dated 5 December 2024 and the delivery by the worker to the employer of the certificate dated14 November 2025. Even though the certificate dated 14 November 2025 did not certify a further period of incapacity, and referred only to the need for further treatment, the employer was entitled, pursuant to s 69(13) of the Act to treat that certificate as a claim for compensation to which s 81A applied, and dispute its liability to pay both weekly payments and benefits under Division 2 of Part VI of the Act.
6. The Tribunal has jurisdiction to hear the employer's s 81A referral.

(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 > > (c) refer the matter to the Tribunal. > > (2) ..................... > > (3) The Tribunal must - > > (a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or > > (b) if the Tribunal 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 Tribunal determines; or > > (c) if the Tribunal considers that a reasonably arguable case 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 Tribunal considers that a reasonably arguable case 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.

2. The test for whether a reasonably arguable case exists under s 81A was set out by Evans J in S_t Helens Oysters Pty Ltd v Coatsworth_ [2007] TASSC 90 (St Helens Oysters) at [10]:

The very notion of 'a reasonably arguable case', like the notion of a 'prima facie case' precludes a final determination of a disputed question of fact. On the face of s81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.

3. The employer's case need not be strong, nor compelling, but it must at least be reasonably arguable: see Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38. The onus of proof, to establish that a reasonably arguable exists, rests with the employer: see, for example, Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16 (Lamont).

1. The employer relied upon a report of Dr Jane Muir, Consultant Occupational and Environmental Physician, dated 21 November 2025.
2. Dr Muir saw the worker for independent medical assessment on 13 November 2025. Dr Muir took a history from the worker and conducted a physical examination. Medical records from the general practice attended by the worker, as well as the results of a number of medical investigations were made available to her.
3. In her report, under the heading 'Conclusions', Dr Muir noted:

[The worker] is a 38-year-old gentleman who works as a Childcare Educator. In September 2024, he reported that he developed widespread thoracic and lumbar pain radiating through to his ribs after a child unexpectedly jumped on his back while he was seated. Whilst the rib pain quickly subsided, he continued to report thoracic and lumbar back pain with intermediate sciatica radiating into the left leg. The rib and lumbar pain and sciatica have since resolved but he continues to report thoracic back pain which he describes as a tension-like pain. > > Examination today found that he was tender over the spinous processes of T3-6 with notable flinching to just light touch. There was no pain in the neck in evidence of neurological involvement. > > Whilst MRI Scan has shown multilevel degenerative disease in the cervical spine, a recent bone scan showed no significant pathological uptake of tracer in the discs, facet joints or the atlantoaxial joint. There was also minimal thoracic spine tracer uptake. > > Based on these findings, it is my opinion that the source of [the worker's] pain is unlikely to be from his thoracic spine vertebrae but instead is nociplastic. > > [The worker] is quite worried about why he has continued to experience pain after he was advised it should get better within six months by a Physiotherapist and, as a result, has become quite pain focused. In my opinion, he would benefit from some pain psychology.

4. Dr Muir was asked a number of questions, which are set out below with her answers.

Question: What is your diagnosis or diagnoses of [the worker's] condition(s)? > > Answer: In my opinion, based on my assessment, the history and my review of the imaging and documentation provided, [the worker] had a soft tissue sprain of the thoracic spine following the initial injury. He has now gone on to develop nociplastic pain. Whilst [the worker] has degenerative changes in the cervical spine, it is my opinion that these are incidental and are not contributing to his symptoms. > > Injury > > Question: Has [the worker] suffered an injury in that there was a sudden and ascertainable physiological change? > > Answer: In September 2024, [the worker] suffered a sprain of his thoracic spine causing radiating pain to his thoracic chest wall and lumbar spine. > > Question: What was that sudden and ascertainable physiological change? > > Answer: The physiological change was the sudden onset of pain > > Question: If so, did that sudden and ascertainable physiological change occur as a result of an external event? What was that external event? > > Answer: Yes, the external event was the child jumping on his back. > > Capacity for work > > Question: Do you agree with [the worker's] most recent medical certificate dated 22 August 2025, that he is currently capacity fit for his pre-injury duties with no restrictions? > > Answer: Yes, I agree with the most recent medical certificate dated 22 August 2025 that [the worker] is fit for his pre-injury duties with no restrictions. > > Recovery > > Question: If [the worker] has suffered an injury (be that an injury, disease or recurrence type injury), do you believe (and stating the basis of your belief) that he has recovered from the injury such that the residual effects of the injury can be said to be trivial and inconsequential in terms of [the worker's] ability to return to his employment with the employer. > > Answer: Yes. [The worker] has returned to his full pre-injury role and his work does not exacerbate any of his symptoms. > > Question: In that sense do you agree that he has wholly or substantially recovered from the effects of the injury? Please explain why or why not. > > Answer: Yes, I agree that he has wholly or substantially recovered from the effects of the injury. > > Treatment > > Question: Can I please have your comments on [the worker's] current medical management regime and in your view:

(i) Are those treatments as a result of the effects of the injury?

(ii) Are the treatments necessary for [the worker] to improve?

(iii) Are the treatments necessary for [the worker] to not deteriorate?

(iv) Would you limit in frequency or duration, and in what way, any of the current treatment being undertaken?

Answer: [The worker] continues to have treatment for the nociplastic pain he has developed following the sprain of his thoracic and lumbar spine. I do not consider that his ongoing nociplastic pain is solely as the result of his initial injury and that there are likely other psychosocial contributors to his ongoing pain.

The weekly physiotherapy that [the worker] has continued to receive offers limited curative benefit as he reports it mainly consists of massage and, whilst he would have two-to-three days of relief from his symptoms, it always recurs.

Question: Can I please have your comments in relation to what you consider to be [the worker's] ideal future medical management regime over the next 3 months, 6 months and insofar as you can say, beyond 12 months. If you were treating him, what would you recommend in terms of:

(i) Medication;

(ii) Physiotherapy;

(iii) Surgery;

(iv) Referrals to other specialists; and

(v) Other modality of treatment.

Question: Further, in your view does the need for those treatments arise from the injury?

Answer: It was clear during the consultation that [the worker] continues to have anxiety about his pain and any possible serious underlying issues. He is worried about overexerting himself in case he makes his condition worse. I do consider some sessions with a Pain Psychologist would be useful to help him reframe and cope with his pain symptoms and help him build confidence with self-management of his pain and returning to his previous levels of activity without fear.

Ideally, after a course of pain psychology, [the worker] would be able to move to self-management of his condition.

No medication is required.

There has been limited benefit of physiotherapy demonstrated, given that [the worker] has continued to experience the same level of thoracic back pain with no change in symptoms for several months despite weekly physiotherapy.

Surgery is not indicated.

As above, I think a referral to a Pain Psychologist would be useful.

I note that [the worker] is keen to explore hydrotherapy or swimming as a form of therapy for his pain. I agree that encouragement for any physical activity will be helpful for [the worker], but I do not consider hydrotherapy specifically is indicated for his injury.

The pain psychology is required for the injury.

Question: What is your prognosis for [the worker's] condition? When do you expect a complete recovery if there is not one already?

Answer: I would hope that [the worker] has an excellent prognosis. He has returned to his full pre-injury work. He also has returned to physical activity in the form of bushwalking and playing badminton. With the intervention of a Pain Psychologist, I would hope his health anxiety could be overcome and he could ultimately return to his pre-injury baseline.

1. The employer submits that it has demonstrated the existence of a reasonably arguable case to dispute that it has any ongoing liability to pay to the worker compensation by way of weekly payments or benefits payable under Division 2 of Part VI of the Act with respect to his injury which occurred on 19 September 2024.
2. The employer says that Dr Muir's opinion is:
   • The worker suffered a soft tissue sprain of the thoracic spine caused by a child jumping on his back on 19 September 2024.
   • The worker has wholly or substantially recovered from the effects of the workplace injury.
   • The persistence of the worker's condition and symptoms represent the development of nociplastic pain. The development of this pain is unlikely to be from the worker's thoracic spine but due to several factors including factors unrelated to the worker's employment.
   • Treatment is not needed as a result of the workplace injury and the worker is fit for pre-injury duties.
3. In relation to Dr Muir's response "The pain psychology is required for the injury", the employer submitted that the particular treatment is required because of the worker's nociplastic pain condition, and when Dr Muir's report is read as a whole, that treatment is not required for a work-caused injury.

1. Where s 69(13) of the Act permits an employer to raise a dispute under s81A, evidence that a worker has 'wholly or substantially recovered' from the effects of the work injury will be a sufficient basis to establish a reasonably arguable case to dispute ongoing liability to pay weekly payments: See Federal Hotels.
2. Dr Muir's opinion that the worker had wholly or substantially recovered from the effects of the original work injury was given in the context of the worker's return to pre-injury duties. I accept that Dr Muir's report supports that there is a reasonably arguable case for the employer to dispute any ongoing liability for to make weekly payments of compensation to the worker (and the worker does not seek weekly payments in any event), on the basis that he is wholly or substantially recovered from the injury and has returned to full duties.
3. However, I do not consider Dr Muir's report supports an argument that the employer does not have liability to pay for at least some benefits under Division 2 of Part VI of the Act
4. An employer is required to pay benefits under Division 2 of Part VI that are 'reasonable expenses necessarily incurred'.
5. Although the employer interprets Dr Muir's report to say that the development of the worker's nociplastic pain is unlikely to be from the worker's thoracic spine, with respect, I do not think this interpretation can be supported. What Dr Muir in fact noted was that the worker's nociplastic pain developed following the thoracic and lumbar sprain, and that she did not consider the ongoing nociplastic pain was solely as a result of the initial injury (with likely other psychosocial contributors). She also specifically opined that the treatment with a pain psychologist is required for the injury.
6. Although Dr Muir's opinion supports an argument that possible treatment modalities of physiotherapy, medication and hydrotherapy are not indicated, the same cannot be said for the suggested pain psychology treatment. It follows that, pursuant to s 81A(3)(b) of the Act, the cost of benefits payable under Division 2 of Part VI by way of pain psychology treatment in respect of the injury to the worker should be paid by the employer.
7. I am otherwise satisfied that the employer has established that there is a reasonably arguable case to dispute its ongoing liability to pay benefits under Division 2 of Part VI of the Act, with the exception of pain psychology treatment.

1. Pursuant to s81A(3)(c) of the Act, weekly payments of compensation are not to be paid by the employer to the worker from the date of these orders.
2. Pursuant to s 81A(3)(d) of the Act, the cost of benefits payable under Division 2 of Part VI of the Act are not to be paid from the date of these orders, with the exception of pain psychology treatment.
3. Pursuant to s 81A(3)(b) of the Act the employer is to pay the cost of pain psychology treatment from the date the employer's s81A referral was heard.