Workers Rehabilitation and Compensation Act 1988 (Tas), ss 69(1), 80A, 81A, 81AB, 88, 86(3).

Fishpool v Incat Tasmania [2013] TASFC 6, considered.

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537, applied.

Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134, considered.

Judgment Number: [2017] TASSC 41

ONESTOP METAL RECYCLING TAS PTY LTD v ADAM JOHN YOUNG

1. The appellant, Onestop Metal Recycling Tas Pty Ltd, has appealed against a determination of Chief Commissioner Webster of 10 March 2017 made in favour of the respondent, Adam Young.
2. It is not necessary for me to set out the grounds of appeal as one core proposition is the central tenet of the matter. The gravamen of the appellant's complaint is that in the circumstances set out in a statement of agreed facts provided to the Tribunal for the purpose of determining a preliminary question which has become the subject this appeal, the Tribunal erred in law in failing to find that the presentation by the respondent to the appellant of a medical certificate dated 11 December 2015 was not legally sufficient, without more, to require the appellant to commence making weekly payments of compensation to the respondent in accordance with s 69(1)(a) of the Workers Rehabilitation and Compensation Act 1988 ("the Act").
3. The certificate certified the respondent as being "incapacitated for any work" due to "lumbar and thoracic region pain", which was a change in the nature and extent of the immediately preceding certification of the respondent's incapacity for work due to that condition, namely, "fit for suitable duties".

1. The statement of agreed facts provided to the Tribunal is attached to these reasons as Annexure "A" in order to provide the broad context of the matter, however the essential facts relevant to the appellant's core contention on this appeal are set out in the following paragraphs.
2. On 22 September 2015, the respondent suffered an injury described as a lower back strain in the course of his employment at the appellant's recycling yard at Cooee in Tasmania. As a result, on 9 November 2015, the respondent lodged a claim for compensation with the employer.
3. On 11 November 2015, the respondent was certified by Dr Ruhidas Debnath as "fit for suitable duties" for the period 11 November 2015 to 25 November 2015. The respondent served that certificate on the appellant on the same day.
4. It was an agreed fact that liability was accepted by the appellant for the respondent's claim for compensation on 9 February 2016, however the 84 day time period specified by ss 81A and 81AB of the Act for deemed acceptance of liability had expired on 3 February 2016.
5. Between 11 November 2015 and 10 December 2015 the respondent was certified by Dr Debnath in relation to his back injury as follows:

1. In the period 11 November 2015 to 4 December 2015, with the exception of 23 and 24 November 2015 when he was certified as incapacitated for any work as a result of his back injury, the respondent was provided by the appellant with suitable employment within the meaning of s 69(1)(b) of the Act and carried out the relevant duties in accordance with what were described as Employer's Return to Work and Injury Management Plans No 1 and 2.
2. That suitable work was full time work for which the respondent was paid his normal weekly earnings or his ordinary time rate of pay for the 38 hours he was accustomed to working.
3. The respondent ceased attending work with the appellant on 4 December 2015 and has not worked for reward in any capacity since that date.
4. On 11 December 2015 the respondent presented the appellant with a medical certificate from Dr Debnath certifying that the respondent was "incapacitated for any work" due to his back injury described in the same way as it had been described by Dr Debnath since 11 November 2015, namely as "lumbar and thoracic region" pain.
5. The appellant disputes that the respondent has suffered total incapacity for work by reason of his back condition since 4 December 2015, and has not made any payments to the respondent referrable to his back injury since that date.
6. Since 11 December, the respondent has continuously provided the appellant with medical certificates from Dr Debnath certifying that the respondent is "incapacitated for any work" due to pain in his lumbar and thoracic region.
7. The appellant has not at any time made a referral to the Tribunal in respect of the respondent's back injury pursuant to s 81A of the Act disputing liability to make payments of compensation, or pursuant to s 88 of the Act to terminate or reduce weekly payments, and has not served the respondent pursuant to s 86(3) of the Act with a notice of intention to terminate or reduce weekly payments of compensation.

1. Without any authority for the proposition, the appellant asserts that because it provided suitable work for the respondent for which he was paid the equivalent of his normal weekly earnings, no liability to pay compensation pursuant to s 69 of the Act had ever crystallised. The appellant further asserts, with a similar lack of authority, that upon the respondent presenting the certificate of 11 December 2015 certifying that he was unfit for any work, the appellant had no obligation to make payments of compensation for total incapacity calculated as required by s 69(1)(a) of the Act unless and until the respondent referred his claim to the Tribunal and established that he was in fact totally incapacitated as a result of his back injury.

1. The appellant's contention is wholly without merit, not the least because in respect of 23 and 24 November 2015, the two days on which the respondent was certified as incapacitated for any work, there can be no other characterisation of the payment made by the appellant than that it was a payment of compensation "in the case of total incapacity of the worker for work" within the meaning of and for the purposes of s 69(1)(a) of the Act.
2. That is totally unsurprising given that it is entirely commonplace for workers to suffer compensable injury which at times results in a partial incapacity for work and is so certified, and at other times results in total incapacity for work and is so certified. The scheme of the Act is that such fluctuations should not present an obstacle to the continued receipt of weekly payments of compensation by the worker or routinely require a fresh claim for compensation.
3. As Porter J observed so succinctly, with respect, in Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6 at [10]:

"Section 80A was obviously intended to overcome difficulties which were perceived to arise from this Court's decision in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308. The section was designed to limit the operation of s81A and to prevent the repetitive operation of the scheme where, for instance, further medical certificates supporting incapacity, or further medical accounts were submitted to an employer. (See also s 69(13) which was inserted by the same amending Act as inserted s80A.) The section should be read literally."

1. Section 80A of the Act provides:

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."

1. Section 69(1) and (13) of the Act provides:

"69 Amount of compensation in case of incapacity

(1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where 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 compensation payable to him under this Act is -

(a) in the case of the total incapacity of the worker for work, weekly payments equal to-

(i) the normal weekly earnings of the worker; or

(ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity-

(b) in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with paragraph (a) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity ...

(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."

1. Section 81A of the Act provides as follows:

"81A Disputes of liability for weekly payments and other benefits

(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

(2) The referral of a matter to the Tribunal is to be accompanied by -

(b) all evidentiary material on which the employer intends to rely at the hearing of the matter.

(2AA) If an employer fails to lodge evidentiary material under subsection (2)(b), the employer may not rely on that material unless the Tribunal otherwise allows.

(2A) Where a matter is referred to the Tribunal under subsection (1), the Tribunal may authorise the Registrar to determine whether a reasonably arguable case exists concerning the liability of the employer to pay-

(b) the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker.

(2B) The Registrar is to advise the Tribunal of the Registrar's determination.

(2C) The Tribunal may make an order giving effect to the Registrar's determination.

(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.

(4) The fact that the Tribunal 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 Tribunal 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), refer the matter to the Tribunal.

(6) For the purposes of this section, the Tribunal or the Registrar may conduct any hearing the Tribunal or the Registrar considers necessary by any appropriate means including, but not limited to, a telephone conference."

1. Section 81AB of the Act provides as follows:

Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the employer does not, in accordance with section 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim."

1. It is beyond argument, in my view, that where a foundational liability is established under the Act by the making of a claim which is not disputed and is thus deemed to be accepted, then compensation continues to be payable in accordance with the provisions of the Act until they may be lawfully ceased. The payments of weekly compensation may at times be for a partial incapacity, and at other times for a total incapacity, but there is only one claim for compensation to which s 81A applies in the case of any 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. Unless there is a break in the continuity of the provision of supporting medical certificates as contemplated by s 69(13), an employer is not entitled to treat the provision of certificates, albeit different in terms of the extent of the incapacity certified, as a claim for compensation to which s 81A applies.
2. That the appellant in the present case was able to provide suitable duties for the respondent for which he was paid his normal weekly earnings, does not mean that the appellant's liability under s 69(1) had not crystallised. It merely means that during periods when the respondent was certified as fit for suitable duties, the amount of weekly compensation to which he was entitled, which entitlement was calculated it must be emphasised in accordance with the very provisions of s 69(1)(a) and (b), was nil. That state of affairs could have changed at any time. It did change on 23 and 24 November 2015 and it changed again and has remained so since 11 December 2015. It is simply the case that s 69(1)(b) expresses a limitation on the amount of compensation payable during such periods. I do not regard anything in the judgment of the majority in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171 at 178 in relation to the concept of partial incapacity for work as suggesting otherwise.
3. The appellant's liability to pay weekly compensation crystallised upon the provision by the respondent of the first certificate he presented on 11 November 2015, which was two days after the "foundational" or "inchoate" liability of the appellant was established by the respondent making a claim for compensation on 9 November 2015. It is simply the case that until 23 November 2015 the amount of the appellant's crystallised liability to pay weekly compensation calculated in accordance with s 69(1) of the Act, was zero dollars because of operation of s 69(1)(b) and the appellant's ability to provide suitable duties to the respondent at his normal weekly earnings.
4. All of the foregoing is trite in my view. Again, with respect, as Porter J put it so succinctly in Fishpool (above) at [3]-[4]:

"3 Sections 25 and 29 refer to a liability 'to pay compensation'. This is to be contrasted with s32 which provides a bar to an entitlement to compensation unless certain things are done. Further, ss67, 69, 71, 75 and 76 provide for the types of compensation payable where an employer is liable under s25. With the exception of ss75 and 76 (expenses for medical and other services, and travelling), those provisions speak of 'the compensation payable' in specified circumstances.

4 That provisions such as s25 create a form of inchoate or foundational liability has long been recognised. This was pointed out by Underwood J (as he then was) _in State of Tasmania v Parson_s [2002] TASSC 59; (2002) 11 Tas R 26 in part of the passage at 34 [20] not reproduced by the primary judge or Estcourt J. Underwood J referred to Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32 at 42; Moakes v Blackwell Colliery Co [1925] 2 KB 64; Kraljevich v Lake View & Star Ltd [1945] HCA 29; (1945) 70 CLR 647; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 202, 203."

1. Section 25(1) of the Act provides as follows:

"25 Liability of employers to compensate workers for injuries

(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A)-

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."

1. This inchoate or foundational liability creates the basis for the distinction between an employer's liability to pay compensation in accordance with the Act as and when the events for which it provides may occur, and a crystallised liability to pay a specific or calculable sum of money to a person in those events. This was pointed out by Barwick CJ in Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 at 548. There is no further distinction such as that which seems to be contended for by the appellant, which is dependent upon the basis upon which a specific amount of compensation is calculated. To distinguish between cases where an employer was able to provide suitable duties at normal weekly earnings, and those where there was a monetary shortfall, would be a wholly artificial subdivision. Moreover it would be one that would have the effect of undermining the scheme of the Act.
2. The appellant's core contention, as I apprehend it from its written submissions, is that in the agreed facts and circumstances of the case it was at the relevant time "lawfully not paying a weekly payment of compensation" by virtue of s 69(1)(b) of the Act, and that if the "mere" presentation of a medical certificate was intended to trigger an obligation to "commence making weekly payments", it would be expected that such an obligation would have found expression in the Act, which it does not. I reject the appellant's submission that so much may be implied from s 49(2)(a) of the Act. That section deals with the onus on a worker to prove "an initial entitlement to a payment of compensation" but it is merely a procedural provision, governing matters otherwise regularly before the Tribunal for determination.
3. In my view it is incorrect to characterise the payments made by the appellant in the present case between 11 November 2015 and 11 December 2015 as not being payments of compensation simply because, except for two days, the calculation under s 69(1)(b) of the Act resulted in no shortfall between the respondent's weekly payment calculated in accordance with s 69(1)(a) and the amount that he would be able to earn in the suitable employment provided. However, even were it otherwise I regard the appellant's core submission as without merit.
4. There are no doubt many cases where after a claim for compensation has been made an employer is "lawfully not paying a weekly payment of compensation" simply because no medical certificate certifying any incapacity has been presented. When the first certificate is presented in a case where, as in the present case, foundational liability has been established, then clearly the Act does intend that the "mere" presentation of that certificate will trigger an obligation in the employer to commence making weekly payments. I regard it as fanciful to argue that the case is different where an employer has been providing suitable duties for an employee with a certified partial incapacity simply because there is no shortfall between that employee's normal weekly payment calculated in accordance with s 69(1)(a) and the amount that he is able to earn in the suitable employment provided.
5. In the face of a submission such as the appellant's core submission it is as well to be reminded of the scheme of the Act. It was very well summed-up, with respect, by Crawford J (as he then was) in Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134, 12 Tas R, at [34]-[35]. His Honour said:

"34 The Act has a relatively clear scheme with regard to disputing claims for weekly compensation. The first such claim to be made that is based on the suffering of an injury under s25(1), may be disputed by the employer under s81A(1). If the employer does not dispute liability for it under s81A, it is taken to have accepted liability in respect of the claim (see s81AB) and is liable accordingly. If the employer does dispute liability under s81A(1), but its reference of the dispute to the Tribunal is determined in favour of the worker, the employer will be liable accordingly. Thereafter, so long as the worker claims further payments of weekly compensation because of a claimed incapacity for work that he or she claims to have resulted from the original injury that was suffered and that is the s25(1) foundational basis for the claim, and the existence of the incapacity is supported by a certificate in an approved form as required by s69(1), the provisions of s81A(1) cannot be used by the employer to dispute the claim, except in the circumstances provided for by s69(13). I note en passant, that the certificate required by s69(1) is required to support only the existence of the incapacity for work and is not required to deal with the question whether the incapacity resulted from the original injury. State of Tasmania v Parsons (supra) at par78. However, because the certificate is required by s69(1) to be in a form approved by the WorkCover Tasmania Board, the Board could, if it wished, make provision in the certificate for the expression of an opinion about causation by the accredited medical practitioner or accredited person providing it.

35 If the employer is not permitted to use s81A(1) to dispute a claim for a continuation of weekly compensation, other provisions in the Act are available for it to do so. For example, if the employer wishes to raise a claim that the worker has wholly or substantially recovered from the effects of the original injury in respect of which weekly compensation is being paid, or that the incapacity is no longer due, wholly or substantially, to that injury, the employer may raise the matter under s86(1)(c). It may also use s81A(5)."

1. It is clear from all that I have said that I regard the central tenet of the appellant's appeal as novel and one that is counter-intuitive, not supported by any authority and quite contrary to the assumptions underlying those authorities to which I have referred. As I perceive it the Tribunal reached the same view although the learned Chief Commissioner's reasons for doing so were somewhat Delphic. Moreover, the appellant's core argument runs contrary to the clear and now well established and understood scheme of the Act for the disputation of claims by employers, an Act which it is trite to say is to be interpreted beneficially to employees. I see nothing in the objects of the Act that compels or commends the appellant's suggested approach to the construction of s 69(1). Given the view that I have reached I find no operative merit in any of the grounds of appeal. The appeal is dismissed.

(a) Mr Young (the worker) was a worker in the employ of Onestop Metal Recycling (Tas) Pty Ltd (the employer).

(b) The worker was employed in a full time position as a site supervisor.

(c) The worker was employed to work 38 hours per week and the ordinary time rate of pay for that work was $26.79 per hour or $1,018.02 per week.

1. On 22 September 2015 at about 11:30 am the worker suffered an injury described as a lower back strain (the back injury) at the employer's recycling yard at 3 Cambria Street, Cooee in Tasmania.

1. On 9 November 2015 the worker lodged a claim for compensation with the employer (the back claim).

1. On 11 November 2015 the worker was certified by Dr Ruhidas Debnath as fit for suitable duties for the period 11 November 2015 to 25 November 2015 (the Initial Workers Compensation Medical Certificate).

1. The worker served the initial certificate on the Employer on or about 11 November 2015.

1. Liability was accepted by the employer for the worker's claim for compensation on 9 February 2016.

1. Relevantly as a result of his back claim the worker was certified by Dr R Debnath as follows:

1. On 4 December 2015 the worker alleges that an incident occurred at work whereby he suffered a psychological condition described as "anxiety and stress overload" (the stress condition).

1. The worker lodged a claim for compensation upon the employer with respect to the stress condition on 16 December 2015.

1. The worker served on the employer an Initial certificate of total incapacity from 4 December 2015 to 11 December 2015 in respect of the stress condition on 4 December 2015.

1. On 28 January 2016 the employer made a Referral pursuant to s81A of the Act in respect of the stress condition.

1. On 11 February 2016 the Tribunal made an order by consent in respect of the stress condition that a reasonably arguable case existed in respect of the claim and that weekly payments and medical and associated expenses not be paid (Ref W/2016/55).

1. The worker has continued to serve on the employer certificates of total incapacity as a result of the stress condition.

1. In the period between 11 November 2015 and 4 December 2015 when the worker suffered his stress condition (with the exception of 23 and 24 November 2015) the worker attended work with the employer and continued to carry out duties in accordance with the Employer's Return to Work and Injury Management Plans No. 1 and 2 which at 4 December 2015 included:

"Medical restrictions: 5 k lifting limit to avoid pulling, pushing, bending, stooping, twisting, squatting. Not to operate machinery. Not to climb ladder.

Suitable duties identified and available: supervising other workers, office duties, customer contact and relations."

1. The work referred to in paragraph 14 performed by the worker were "suitable duties" for the purpose of s69(1)(b) entailing full time work managing the employer's weighbridge and yard which included:

8 hours work per day for 5 days per week with three breaks;

close access to the employer's restrooms 20 metres away;

manning the radio and coordinating work undertaken in the yard;

checking trucks and vehicles coming into and out of the yard;

completing docket books, weighbridge records, making payments for scrap metal, entering data onto a computer and giving directions to truck and vehicle drivers and staff.

• lifting in excess of 5 kg;
• driving a forklift truck;
• operating an excavator.

1. The worker was paid his ordinary wage of $1,018.02 per week for the work he performed between the period 11 November 2015 and 4 December 2015 when he suffered the stress condition.

1. The worker was also paid $1,018.02 for the period 5 December 2015 to 21 December 2015.

1. The work which the worker performed between the period 11 November 2015 and 4 December 2015 has continued to be performed by alternative employees of the employer for an equivalent wage to that paid to the worker.

1. Pursuant to s81 the worker was paid the following amounts in relation to his stress condition up to the time of the making of the Tribunal's s81A order on 11 February 2016:

(a) week ending 28 December 2015 $ 528.62

(b) week ending 4 January 2016 $ 773.32

(c) week ending 18 January 2016 $ 773.32

(d) week ending 25 January 2016 $ 773.32

(e) week ending 1 February 2016 $ 773.32

(f) week ending 8 February 2016 $ 773.32

1. From 1 March 2016 until about 14 April 2016 the worker was paid annual leave at rate of $1,018.02 per week plus leave loading of $178.15 per week.

1. From about 14 April 2016 to date the employer has not paid the worker at all.

1. The worker has not worked for reward in any capacity since 4 December 2015.

1. The employer disputes that the worker has suffered total incapacity for work by reason of his back condition since 4 December 2015.

1. Attached hereto and marked "A" is a schedule of all medical certificates served by the worker since 27 November 2015.

1. The employer has not at any time made a Referral to the Tribunal in respect of the back claim pursuant to s81A or s88 of the Act and the employer has not served on the worker a notice as required by s86(3) of the Act in respect of the back claim.