[2005] TASWRCT 13

WORKERS REHABILITATION AND COMPENSATION TRIBUNAL

Entitlement to compensation - Person entitled to compensation - Ex parte - Notice of injury - Date of claim for compensation - No incapacity - No medical expenses - Injury at home.

Reasonably arguable case. Compensation by way of weekly payments and the cost of any benefits payable under Division 2 of Part VI is not to be paid to the worker by the employer.

[2005] TASWRCT 13

Chief Commissioner Carey

1 The worker made a claim for compensation upon his employer, the worker's report being dated 18 April 2005. The worker in that claim alleges that on 23 December 2004 whilst at home, he was performing rehabilitation exercises in respect of a lower back injury when he developed a shoulder ache. This condition was diagnosed as a soft issue strain to the shoulder. This claim for compensation was disputed by the employer and when the referral of that dispute was heard by the Tribunal there was no appearance for or on behalf of the worker. The matter proceeded ex parte.

2 By way of background the Tribunal was advised that the worker suffered an injury to his lower back in an incident at work on 20 May 2004. As a result of that injury he received certain medical and ancillary treatment but was able to remain at work performing modified duties. It appears that by his present claim for compensation, the worker is alleging that he suffered a further injury whilst in the course of performing exercises which in themselves were necessary to assist the resolution or control of symptoms as a result of the previous lower back injury. The claim in respect of the lower back injury was accepted by the employer. In so far as the new claim for compensation is concerned the employer relies on a number of grounds to justify it's dispute. The first being that notice of this injury was not given as soon as practicable. On the claim for compensation the worker states that he gave notice to "DR FARMER A BONSEY ALLIANZ". It is submitted on behalf of the employer that none of these persons or entities was a person having authority to receive notice of injury on behalf of the employer. The employer says that it received notice of injury when a medical certificate dated 30 December 2004 was presented to it on 13 January 2005.

3 It was further submitted on behalf of the employer that at the time that the claim for compensation was made to the employer being when the claim document itself was provided to the employer on 18 April 2005, there was no possible liability in the employer as the worker was neither certified as incapacitated for work to any extent nor were there any accounts for any medical or ancillary services outstanding. Accordingly the employer submits that as the worker at that time had no entitlement to workers compensation benefits generally, the claim for compensation was of no effect.

4 Finally it was submitted that on the face of the claim document itself, this injury occurred at the worker's residence outside work hours. It was submitted therefore that the injury could not be said to arise out of and in the course of the employment and was in no way incidental to the worker's employment.

5 After considering the material provided and the submissions made on behalf of the employer I was satisfied that in so far as the claim for compensation dated 18 April 2005 was concerned that there was a reasonably arguable case in so far as the employer's liability in respect of that claim. Accordingly at the conclusion of this hearing appropriate orders were made in accordance with s81A(3)(c) and (d).

6 As an aside it appears to the Tribunal that given the form and contents of the medical certificates that were initially provided to the Employer, it could be at least argued that there had been a further claim relating to the initial back injury. It is conceivable that a submission could be made that the shoulder injury was as a result of the treatment for the back injury and thereby there was a direct and unbroken causative link between back injury and the shoulder injury. This matter is taken no further.