Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Generally - Certificate supporting existence of incapacity.

Workers Rehabilitation and Compensation Act 1988 (Tas), s69(1).

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of tribunals, boards, commissioners etc - Tasmania - Employer failing to give statutory notice disputing claim - Effect.

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

Freemasons Homes of Southern Tasmania v Greenwood [1996] TASSC 74; (1996) 5 Tas R 445, followed.

Judgment Number: [2001] TASSC 101

1 This is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") constituted by its Chief Commissioner: [2001] TASWRCT 26. The appellant initially made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") in October 1994. It appears that she claimed and received weekly payments for "a work related stress and anxiety condition". By August 1997 she had returned to work and ceased to receive weekly payments under the Act. However a series of medical certificates was presented to the respondent certifying her unfitness for any work as from 18 August 1997. The first of them bore that date, and asserted that she was unfit for any work from then to 31 August 1997 inclusive. There is a dispute between the parties as to whether the presentation of this certificate amounted to a claim for compensation for the purposes of the Act, ss81 and 81AB. The respondent did not invoke s81A, which relates to disputes concerning liability to make payments under the Act, nor did it invoke s81AA, which can be invoked when an employer wishes to defer a decision to accept or dispute liability to pay compensation under the Act. The appellant referred the matter to the Tribunal. It was argued on her behalf that the certificate of 18 August 1997 amounted to a claim for compensation on the basis that she had become totally incapacitated as a result of the condition for which she received compensation in 1994, and that the respondent was precluded from disputing liability by s81AB. However, the learned Chief Commissioner held that the certificate did not comply with the Act, s69(1), and that, as a result, it was incapable of being treated as a claim for compensation. He left open the question whether a certificate dated 6 January 1998 and subsequent certificates did satisfy s69(1), and said that the appellant's application would be re-listed for a further hearing in respect of those certificates. His formal determination reads as follows:

"Subject medical certificates do not comply with S69(1), therefore are not claims for compensation. Tribunal has no jurisdiction to determine entitlement in respect of those certificates."

2 The appellant has pursued two grounds of appeal (grounds 2 and 4), which read as follows:

"2 The Commissioner erred in law in concluding that the certificates dated 18th August 1997 to 24th November 1997 inclusive were incapable of being treated as claims for compensation.

4 The Commissioner erred in law concluding that the certificates dated 18 August 1997 to 24 November 1997 inclusive did not comply with Section 69(1) in that they neither provided evidence that the incapacity resulted from the original injury nor did they support that fact."

3 The certificate of 18 August 1997 appears to have been completed by a general practitioner filling in a prepared form. The substantive parts of it read as follows:

"I examined Herminia Parsons on 18/8/97 who presented with: work-related stress.

The injury or disease was stated to be caused by: work situation.

4 is unfit for any work from 18/8/97 to 31/8/97 inclusive."

4 Mr Turner submitted on behalf of the respondent that the learned Chief Commissioner had rightly held that this certificate did not satisfy s69(1), the relevant parts of which read as follows:

"69 - (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 an accredited medical practitioner or accredited person, the compensation payable to him under this Act is, in addition to any lump sum that may be payable under section 71 or 72 in respect of that injury -

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

(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 -

5 In my view the learned Chief Commissioner made a fundamental error in considering the provisions of s69(1) at all. This was a case to which ss81 and 81AB applied. They provide, relevantly, 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.

(3) Weekly payments payable under this section are payable from the date on which the claim for compensation was given to the employer under section 34.

"81AB 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."

6 A claim for the restoration of weekly payments when earlier payments have been lawfully terminated under s86, or have lawfully ceased upon the expiry of a medical certificate not succeeded by a fresh one, amounts to a "claim for compensation" for the purposes of these sections: G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 per Cox CJ at 320. If, by presenting the certificate of 18 August 1997 to her employer, the appellant was seeking a restoration of weekly payments, then the certificate, or perhaps its presentation, amounted to such a claim for compensation. The respondent had neither disputed liability as provided for in s81A nor deferred a decision whether to accept or dispute liability as provided for in s81AA. By operation of s81AB, the respondent is therefore "taken to have accepted liability in respect of that claim". It is necessary to consider what issues are taken to have been determined in the worker's favour as a result of the operation of s81AB when, as in this case, the employer still does not make any weekly payments, and the worker refers the matter to the Tribunal.

7 In order for the Tribunal to base a decision on s81AB, because of the wording of the section, four findings of fact would first need to be made in favour of the worker: (a) that the employer had received a claim for compensation; (b) that that claim was in relation an injury to the worker; (c) that the worker was employed by the employer; and (d) that the employer had not disputed liability in accordance with s81AA or s81A. If such findings are made in favour of the worker, "the employer is taken to have accepted liability in respect of that claim". If the claim is one for weekly payments of compensation, as contemplated by s81, it must follow that the employer is precluded from disputing liability to make weekly payments, and can at most dispute the quantum of the weekly payments.

8 Thus, it would not be open to the employer to dispute liability on any of the following bases: (a) that no incapacity for work had resulted from the injury to which the claim related; (b) that the existence of an incapacity was not supported by a certificate signed by an accredited medical practitioner or accredited person; (c) that such a certificate was not in a form approved by the Workplace Safety Board of Tasmania (referred to in s69(1) as "the Board"); or (d) that the injury to which the claim related was not work-related. An employer that has not invoked s81AA or s81A, but who wishes to dispute liability for the continuation of weekly payments can only do so by referring the matter to the Tribunal pursuant to s81A(5) or s88. The employer may not unilaterally terminate or reduce weekly payments unless one of the exceptional situations listed in s86(1) applies.

9 In Freemasons Homes of Southern Tasmania v Greenwood [1996] TASSC 74; (1996) 5 Tas R 445, a Full Court decision, a worker had made a claim for weekly payments and the employer had neither invoked s81A nor made any payments. At the relevant time, ss81AA and 81AB had not been enacted. Cox CJ held at 450 that the worker "had the right to receive payments of weekly compensation ... 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." At 458 Zeeman J said, "The only issue for determination by the learned Commissioner was whether the pre-conditions to payment, prescribed by s81(1), had been established."

10 Comments have been made in a number of cases which, at least at first glance, might be taken to suggest that, despite s81AB, liability can still be disputed by an employer in a case like this one on the basis that the certification requirements of s69(1) have not been satisfied. In G L & V N Barber Pty Ltd v Ryan (supra) at 314, Cox CJ, presiding in the Full Court, after reciting the relevant parts of ss81, 81AA, 81A and 81AB, said the following:

"If the presentation of a fresh certificate does amount to a claim for compensation within these provisions, the claimed unfairness to both employer and worker disappears. The employer, upon receiving the claim, again has the right to dispute the worker's entitlement to payment, but only if it makes up its mind to do so promptly and refers the matter to the Tribunal. If it fails to do so, then it will be taken to have admitted its liability in respect of that claim (s81AB) and if the worker, to enforce his right to receive the payment, refers the matter to the Tribunal under s42, the only issue before the Tribunal will be whether the worker has established the preconditions to payment prescribed by s81(1), namely that the employer has received a claim for compensation accompanied by a medical certificate in an approved form and that the claim is in relation to an injury to a worker employed by the employer ..."

11 However, in the same judgment at 320, his Honour said the following:

"In this case, the employer failed to avail itself of the right of referral and accordingly its liability to make these payments was concluded. In accordance with the decision in Freemasons Homes of Southern Tasmania v Greenwood (supra) at 450, the only issue on the worker's reference was whether the employer had received a claim for payment of weekly compensation in relation to an injury to a worker employed by it."

12 Although the other members of the Full Court agreed with his Honour's conclusions and proposed orders, neither of them adopted his reasons. With all due respect to his Honour, it seems to me that the two passages I have quoted are inconsistent. In my view the second passage accurately reflects the law. I can only think that the words "accompanied by a medical certificate in an approved form" were included in the first passage through oversight. The appeal before the Full Court did not raise any question as to the effect of ss81 and 81AB in relation to the requirement of a s69(1) certificate. There is nothing in the report of the appeal to suggest that any argument was presented as to that point.

13 Underwood J made a similar comment in Muir v Dance [1997] TASSC 12; (1997) 7 Tas R 1 at 8, as follows:

"It seems to me that once a claim for compensation is made and not contested as prescribed by s81A(1), and incapacity for work actually exists and its existence is supported by a certificate by a medical practitioner, an entitlement to weekly payments arises."

However that case was not concerned with the significance of the certification requirement in s69(1) when an employer does not dispute liability. It concerned a reference to the Tribunal pursuant to s81A(5) by an employer who had not initially disputed liability, but wished to dispute his liability to continue to pay weekly payments.

14 QBE Insurance Ltd v Kingston [2001] TASSC 12 concerned facts similar to the facts of this case. A worker who had obtained weekly payments in respect of a fractured leg returned to work, but subsequently sought a resumption of weekly payments in respect of an allegedly consequential stress condition. A recent medical certificate was presented in relation to incapacity resulting from such a condition. The employer did not dispute liability, but did not resume making weekly payments. The worker referred the matter to the Tribunal. The employer did not. Despite the wording of s81AB, the Tribunal considered whether the medical certificate satisfied the requirements of s69(1), and decided that it did not. Nevertheless, the Tribunal did not dismiss the worker's reference, but adjourned it for further hearing. The insurer and the employer appealed, arguing that the Tribunal had no further jurisdiction once it had determined that the certificate did not comply with s69. Slicer J agreed, and allowed the appeal. From his reasons for judgment, it does not appear that counsel for the worker took the point that s81AB prevented the insurer and employer from taking any point as to the certificate. The worker has appealed to the Full Court in that case. It remains to be seen whether he will pursue any ground of appeal concerning s81B.

15 The question whether s81AB precludes an employer from disputing liability on the basis of non-compliance with the certification requirements of s69(1) was not in issue in any of the three cases I have referred to. I therefore do not regard them as authoritative as to that question. By contrast, the comments of Cox CJ and Zeeman J in Freemasons Homes v Greenwood (supra), although they related to an earlier version of the legislative regime, amount to Full Court authority for the proposition that, when s81(1) requires an employer to make weekly payments, any non-compliance with the certification requirements of 69(1) cannot be relied upon in proceedings consisting solely of a reference by the worker to the Tribunal.

16 Giving the words of s81AB their ordinary meaning leads to a conclusion that, if "the employer is taken to have accepted liability", the employer is taken not to be relying on any non-compliance with the certification requirements of s69(1). Such an interpretation is consistent with the well-established principle that workers compensation legislation, as beneficial legislation, ought to be given an interpretation favourable to workers: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 9; Odlin Shop Fitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632 at 639 - 640; Dodd v Executive Air Services Ltd [1975] VicRp 66; [1975] VR 668 at 679, 682; Loizos v Carlton & United Breweries Ltd [1994] NTSC 24; (1994) 94 NTR 31 at 33; McDermott v Owners of SS Tintoretto [1911] AC 35 at 46.

17 Such an interpretation also accords with the purpose of the amending legislation whereby s81AB was introduced - to avoid the undesirable situation whereby an employer in receipt of a claim neither makes weekly payments nor disputes liability, leaving the worker in a situation where he or she is financially disadvantaged and could be put to proof as to all relevant requirements of the legislation before weekly payments might commence or resume. For these reasons, I consider that s69(1) was irrelevant to the issues before the learned Chief Commissioner, and that he erred in law in concluding that the certificate of 18 August 1997 was not capable of amounting to a claim for compensation because it did not comply with s69(1). Ground 2 must succeed on that basis.

18 If I am wrong as to that, I believe this appeal should still succeed on the basis that, as ground 4 asserts, the learned Chief Commissioner erred in holding that the certificate of 18 August 1997 did not comply with s69(1), on the basis that it did not support the fact that the appellant's incapacity resulted from her original injury in 1994, and did not provide evidence of that fact.

19 It is clear from the wording of s69(1) that the signing of a certificate meeting the requirements of that subsection is a condition precedent to a worker becoming entitled to weekly payments in respect of an incapacity for work. See, for example, QBE Insurance Ltd v Kingston (supra) at par11. However it is significant that s69(1) does not require a certificate to deal with any question of causation. It requires it to support only the existence of a total or partial incapacity for work. The certificate of 18 August 1997 asserted that the appellant was unfit for any work from 18 August 1997 to 31 August 1997 inclusive. It follows that it was open to the learned Chief Commissioner to find as a fact that the existence of a total incapacity was supported by the certificate. Because of the wording of the certificate, it would not have been open to the learned Chief Commissioner not to make such a finding.

20 I do not think the words "the existence of such total or partial incapacity" in s69(1) should be interpreted as meaning "the existence of a total or partial incapacity for work that results from an injury suffered by a worker". The ordinary natural grammatical meaning of the words used does not suggest such an interpretation. Further, such an interpretation would fly in the face of the principle that workers compensation legislation, as beneficial legislation, ought to be given an interpretation favourable to workers.

21 The ratio of the learned Chief Commissioner's decision appears in the following paragraph of his reasons, where he was speaking of the certificate of 18 August 1997 and a series of subsequent certificates:

"The subject certificates do not comply with Section 69(1). The certificates neither provide evidence that the incapacity resulted from the original injury, nor do they support that fact. The certificates are therefore incapable of being treated as claims for compensation. In so far as those certificates are concerned the Tribunal has no jurisdiction to entertain the worker's claim for workers compensation benefits throughout the period covered by those certificates."

22 The learned Chief Commissioner erred in treating s69(1) as if it required a certificate not only to support the existence of a total or partial incapacity, but also to support the existence of a causative link between the incapacity and an injury.

23 Mr Turner submitted that the certificate had not been duly completed, and that the words "supported by a certificate in a form approved by the Board" should be interpreted as meaning "supported by a duly completed certificate in a form approved by the Board". As a form approved by the relevant Board is not one prescribed under the Act, the Acts Interpretation Act 1931, s47(2), which authorises the use of documents to the like effect of prescribed forms if they are not calculated to mislead or prejudice, does not apply. However a legislative requirement for the use of an approved form, even a mandatory one, requires only substantial compliance with the form: Hamilton v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 657; (1993) 48 FCR 20 at 32 - 33. In my view it would have been open to the learned Chief Commissioner to find that the certificate of 18 August 1997 substantially complied with the approved form, assuming of course that the form used was an approved one.

24 Mr Turner submitted that s69(1) required not just that a medical certificate provide some degree of support for a worker's claim, but that it provide support for all the requirements underlying a worker's entitlement. He submitted that such an interpretation should be preferred because it would create certainty, and would encourage the provision of such thorough medical certificates that the Tribunal would not be clogged up by numerous s81A referrals. He suggested that such an interpretation would not be a great burden on workers because a worker whose medical certificate was inadequate could readily get another one. I reject those submissions. The words of s69(1) make it clear that the certificate need only provide support as to the existence of a total or partial incapacity, and that it is sufficient if it provides some support in that regard. This interpretation is supported by a comparison with s34. An initial claim for compensation under s34(1) is required by s34(1)(b) to "be accompanied by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person". There is an ameliorative provision in s34(3), whereby a defect, omission or irregularity in such a medical certificate does not affect the validity of the initial claim unless such defect, omission or irregularity relates to information which is not within the knowledge of, or reasonably ascertainable by, the employer or insurer. No such ameliorative provision exists in relation to s69(1) certificates. The lack of such an ameliorative provision suggests, in my view, that the certification requirements of s69(1) should be regarded as relatively easily satisfied. If Parliament had foreseen difficulty in satisfying such certification requirements, I expect an ameliorative provision similar to s34(3) would have been included in s69. Further, I note that the form of the certificate of 18 August 1997 did not enquire as to whether the immediate cause of the worker's incapacity was secondary to any earlier injury or medical condition, nor as to the nature of any earlier injury or condition. If the form was an approved form, it cannot be said that s69(1) was not complied with by reason of information that the form did not call for not having been provided.

25 For these reasons, I think the learned Chief Commissioner erred in holding that, because the certificate of 18 August 1997 (amongst others) did not provide evidence that the appellant's incapacity resulted from her original injury, and did not support that fact, it did not comply with s69(1) and could not be treated as a claim for compensation. Ground 4 must succeed on that basis. Further, when a worker seeks a resumption of weekly payments, a s69(1) certificate is only a pre-requisite to an entitlement to weekly payments. There is no requirement that a claim for compensation within the meaning of s81(1) be made by way of presenting a s69(1) certificate. One could be delivered after the claim is made.

26 Mr Turner made a number of submissions to the effect that, for reasons not relied upon by the learned Chief Commissioner, the respondent had not received a claim for compensation from the appellant for the purposes of ss81 and 81AB. He submitted that the mere presentation of the medical certificate by the appellant amounted only to an assertion of an entitlement to compensation, as distinct from a claim for compensation. I am inclined to think that it would rarely be open to the Tribunal to accept such a submission. In the ordinary course of things, if a worker submits a medical certificate asserting total incapacity for work for a particular period without expressly asking for payments of weekly compensation, the only reasonable inference would be that the worker was thereby intending to communicate a claim for compensation. Other possibilities, for example, that the worker was intending to ask for compensation but forgot to do so, or intended only to assert a right and not to exercise that right, are so fanciful as to be absurd.

27 As I understand Mr Turner's submissions, he contended that when, as in this case, a worker seeks a resumption of weekly payments, the relevant claim for compensation, which s81AB requires to be "in relation to an injury", must expressly be related to the original compensable injury, and that it is insufficient for only some recent medical condition or other injury to be mentioned, even if that injury or condition is a result of the original compensable injury. It is true that, in such a situation, only the original injury is compensable: FAI General Insurance v Morrisson [1993] TASSC 115; (1993) 2 Tas R 9; Tubemakers of Australia Ltd v Kurz, 4/1998 Crawford J. However I believe that the words "claim for compensation in relation to an injury" in s81AB should not be interpreted as referring only to a claim expressed to relate to the original compensable injury in such a case. Whilst the section requires the claim for compensation to be in relation to an injury, I do not think that should be read as requiring anything greater than a relationship between the claim and some actual or alleged injury. Of course a "disease" constitutes an injury for the purposes of the Act. It must certainly be sufficient in a case like the present for the claim to bear a relationship to the injury or medical condition that is said to be the immediate cause of an incapacity for work. To require a reference to the original compensable injury, or even a proven connection with the original compensable injury, would be to adopt an interpretation of s81AB that is inappropriate for beneficial legislation and is inconsistent with the intention underlying the amendment that introduced the section.

28 Mr Turner submitted that there had been no evidence before the Tribunal as to whether the certificate of 18 August 1997 was "in a form approved by the Board". He suggested there might be some doubt as to what, if anything, the Board has approved. I cannot think that Parliament intended the approval of a form of certificate by the Board to be a pre-requisite to workers in this State being entitled to payments of weekly compensation. If the present respondent, the State of Tasmania, has some doubt as to what the Board has or has not approved, then that is a disgraceful situation, especially when one considers the position of those workers who are entitled to claim and receive weekly payments of compensation. I will have to remit this matter to the Tribunal since it has not made findings of fact as to the respondent receiving a claim for compensation in respect of an injury to the appellant. For the reasons I have stated, the question whether the existence of an incapacity on her part was supported by a certificate in a form approved by the Board will not arise for determination by the Tribunal.

29 I allow the appeal, set aside the determination of the Tribunal, and remit the matter to the Tribunal for determination according to law. I see no reason why the Tribunal should not again be constituted by its Chief Commissioner.