Workers Compensation - Assessment and amount of compensation - Adjustment of benefits and review of weekly payments - Reduction of weekly payment by reason of a formerly totally incapacitated worker becoming partially incapacitated only - Whether employer is entitled to reduce without an order of the Tribunal.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss69, 86, 88.

Atkinson v Nipper Cleaning Services Pty Ltd A105/1993 (unreported, available on SCALE), applied.

Pasminco Australia Ltd v Simmons A50/1993 (unreported, available on SCALE), explained.

ZEEMAN J This is an appeal from the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). The appellant was a worker in the employ of the respondent. On 19 August 1994 she made a claim for compensation pursuant to the Workers Compensation Act 1988 (as it was then entitled) ("the Act") in respect of total incapacity resulting from occupational asthma suffered by her in the course of her employment with the respondent. That claim was supported by a medical certificate. Further medical certificates were provided from time to time. The initial certificates certified to the appellant being totally incapacitated for work. Subsequent certificates certified to her being partially incapacitated. Those certificates stated that the appellant was unable to work in a hairdressing salon (that being the work in which she was engaged in her employment with the respondent) but otherwise did not indicate the nature of the work which she was able to perform. The respondent commenced to make a weekly payment of $359.15. It continued to make payment at that rate regardless of whether the relevant certificate certified to total or partial incapacity.

2. By a letter of 8 November 1994 the respondent's solicitors advised the appellant that their client was "treating your rights to compensation and your right to take any proceedings pursuant to the Workers Compensation Act 1988 as being suspended". Weekly payments were then suspended. The respondent took that action in purported reliance upon the Act, s85(6), claiming that the appellant had refused to submit herself to an examination by a particular medical practitioner. The appellant referred the suspension to the Workers Compensation Commissioner by a reference dated 3 February 1995. That reference had not been determined when the Workers Rehabilitation and Compensation Act 1995 commenced on 16 August 1995 so that, by that Act, s92, the reference was deemed to be a reference to the Tribunal.

3. The Tribunal found that no requirement on the part of the respondent that the appellant submit herself to an examination by that medical practitioner was ever communicated to her. That finding is not challenged it the present proceedings. It necessarily followed that there had been no refusal by the appellant in the terms of the Act, s85(6) which authorised a suspension under that subsection. Section 85(1) imposes on a worker the obligation to undergo an examination by a medical practitioner at the instance of the employer, but only "at any reasonable time and place of which (the worker) has reasonable notice". Unless there is reasonable notice of the examination there has not been a requirement "under this section" within the meaning of s85(6) so that no right to suspend the payment of compensation can arise. The Tribunal also concluded that the suspension was not authorised by s85(6), although for somewhat different reasons, which overlooked the effect of s85(1).

4. However, the learned Commissioner who constituted the Tribunal did not confine himself to so holding and making any necessary consequential order. He proceeded to consider whether the weekly payment should be at a rate other than that at which it had been made immediately before the suspension took effect. He concluded that the appropriate weekly rate was $181.27 and ordered that as from the date of the suspension payment should be made at that rate. In fact the respondent had commenced making a weekly payment from 6 February 1995 at that lower rate.

5. The appellant has appealed against the orders of the Tribunal. The notice of appeal contains two grounds. The first ground challenges the jurisdiction of the Tribunal to determine that weekly compensation be paid at a rate other than that being paid immediately before the suspension. The second ground asserts that as a matter of law the Tribunal could not have determined other than that the appropriate amount of the weekly payment subsequent to the suspension was $359.15.

6. The reference by the appellant to the Commissioner challenged the lawfulness of the suspension. That reference was authorised by the Act, s42, there being no specific statutory provision whereby an unauthorised suspension of a weekly payment by an employer may be made the subject of a reference. In particular, the Act, s85(5)(c) had no application. The question of whether a purported suspension under s85(6) is authorised by that subsection is a question which falls within the definition of a "claim for compensation", as that expression is defined by the Act, s3(1).

7. The "matter or question" (as that expression is used in the definition of "claim for compensation") referred by the appellant was the lawfulness of the suspension and not the quantum of the weekly payment. The Act, s61(1) authorised the Tribunal to make an order giving effect to its determination in respect of "the claim for compensation" the subject of the reference. The expression "matter or question" is to be given a wide construction, as appears from the authorities concerning the word "matter" referred to by Underwood J in his judgment in Atkinson v Nipper Cleaning Services Pty Ltd A105/1993 (unreported, available on SCALE) at 2.

8. Nevertheless, it should be confined to the matter or question actually referred and those matters and questions which necessarily arise therefrom or which necessarily arise therefrom if the primary matter or question is determined in a particular way. By way of example, in Atkinson v Nipper Cleaning Services Pty Ltd (supra) it was held that, on a reference by a worker of a termination under s86, a conclusion that the employer was entitled to terminate paying compensation at the former rate required the Workers Compensation Commissioner to consider whether the worker was entitled to payment at some lesser rate. By way of contrast, had the Commissioner in that case concluded that the employer was not entitled to terminate payment at that rate, I do not consider that he would have had jurisdiction to embark on some general inquiry as to what was the appropriate rate. That would not have formed part of the matter referred.

9. The Tribunal correctly determined that the suspension was unlawful. That determination completely dealt with the matter or question referred, except that, for the purposes of making an order to give effect to its determination, it might have been required to quantify the arrears of compensation. That quantification authorised the Tribunal to do no more than to ascertain what was being paid prior to the suspension and to make the necessary mathematical calculations based on that rate. This conclusion accords with the principles which have led appellate courts in other jurisdictions to hold that, where an employer suspends a weekly payment by reason of a refusal of a worker to undergo a medical examination, the worker, on undergoing the required examination, is entitled to be paid the weekly payments which accrued during the period of the suspension (Metropolitan Water Sewerage and Drainage Board v Plekan (1959) SR (NSW) 91; Anastasopoulos v Nilsen Porcelain (Aust) Pty Ltd [1967] VicRp 105; (1967) VR 827). Any other conclusion would have the potential to lead to injustice. It would enable an employer to quite unlawfully terminate or suspend a weekly payment and then expose a worker who referred such termination or suspension to the Tribunal to the risk of a termination or reduction of a weekly payment without the employer having taken the steps which the Act prescribes as the prerequisites to a termination or suspension.

10. Counsel for the respondent argued that even if the Tribunal was not authorised to embark on a consideration of what was the appropriate rate, unrestrained by what had been paid prior to the suspension, the respondent was entitled to vary the weekly payment in accordance with the Act, s69 without any order of the Tribunal. She submitted that such a variation, by way of paying in one week less than what had been paid in the previous week, did not amount to a reduction within the meaning of the Act, s86 and that once it had been made by the respondent it became the appropriate rate. The learned Commissioner who constituted the Tribunal appears to have accepted these submissions when he said:

"... there has to be an appropriate certificate in existence

before the employer is bound to pay according to the

provisions of section 69. The periods in question seem to

me to relate to certificates where the worker was partially

incapacitated and, if that is the case, then according to

the authority of Pasminco v Simmonds (sic), the employer is

entitled to reduce the payment without having regard to the

provisions of section 86 or section 88 or section 81A(5).

Where the worker herself asserts that she is partially

incapacitated by reason of these certificates, then the

reduction is authorised.

...

The worker had been quite capable of working in a clothing

store, which she had done, and for which she was paid. It

seems totally appropriate in those circumstances for the

employer to pay her what he believed the extent of her

compensation to be based upon the certificate that she had

presented that she was partially incapacitated and unable to

work in a hairdressing salon."

11. I do not accept those submissions. I consider them to be contrary to what was held by the Full Court in Atkinson v Nipper Cleaning Services Pty Ltd (supra). That case is authority for the proposition that s86 comprehensively lays down the circumstances in which an employer may lawfully terminate or reduce a weekly payment, although it is now to be read subject to s69B, although that section has no application to the present case. There is no warrant for distinguishing between a reduction within the meaning of s86 and a decrease in the weekly payment payable by operation of s69.

12. The supposed distinction between a reduction and a decrease in a weekly payment is a distinction without a difference. In any event, particular provisions of ss69 and 86 support the proposition that the Act does not permit an employer to apply s69 in such a way that there is a termination or reduction of a weekly payment without that being authorised by s86 or by an order made under s88. The only provisions of the Act which make provision for a reduction in a weekly payment are s69(3) and (9). In addition, s69(1)(b), in its application, may call for a reduction. If an application of any of the provisions of s69 does not involve a reduction within the meaning of s86(1) then the reference to a reduction in that subsection would be otiose. Section 69B does not provide for a reduction in a weekly payment because it provides for the percentage of a "weekly payment" to be paid during particular periods during which a worker is incapacitated for work, without affecting the amount of the weekly payment.

13. It would follow from the respondent's argument as to the operation of s69 that s69(6) is self-operating in that once weekly payments have been made in a total amount which equals that prescribed by that subsection, an employer is entitled to terminate payments. However, that is not the position because of the provisions of s86(1)(e) and (3). Even where payments have reached the statutory limit an employer must continue making further payments until the expiration of 10 days of the service on the worker of a notice in the terms of s86(3)(a).

14. The learned Commissioner considered that Pasminco Australia Ltd v Simmons A50/1993 (unreported, available on SCALE) was authority for the proposition that the respondent was entitled to reduce the payment without regard to the provisions of the Act, ss81(a)(5), 86 or 88 because the appellant had submitted certificates which certified to partial incapacity. With respect to the learned Commissioner that case is not authority for that proposition. It is authority for no more than that actual payment of weekly compensation is not required in respect of any period not covered by a medical certificate under s69(1). Once a weekly payment has commenced it may not be terminated or diminished unless authorised by s86. Nevertheless, until a worker fails to present a medical certificate in respect of a particular period the employer is not obliged to pay any weekly payment in respect of that period. The withholding of a payment in such circumstances does not amount to a termination of the weekly payment. All that occurs is that the obligation to make the actual payment is left in abeyance until such time as the relevant medical certificate is presented.

15. I do not consider that anything said in Pasminco Australia Ltd v Simmons (supra) provides authority for the proposition that where a worker who has been wholly incapacitated provides further certificates certifying to partial incapacity the employer is unilaterally entitled to reduce the weekly payment. Where a worker in receipt of a weekly payment in respect of an incapacity certified as being total incapacity subsequently submits a certificate of partial incapacity that worker is entitled to continue to receive a weekly payment at the same rate until such time as it is reduced in accordance with s86 (if that section is available) or the Tribunal makes an order to that effect pursuant to s88. On the hearing of a reference under s88 in such circumstances, the Tribunal is to have regard to the relevant provisions of s69. An application of those provisions may require a reduction of the weekly payment but that is not necessarily the case where a worker has regained some capacity for work but retains some incapacity.

16. The employment referred to in the passages from the learned Commissioner's reasons was the subject of some brief evidence before him. That evidence was to the effect that during September and October 1994 the appellant did some relief work in a fashion shop over luncheon periods to fill in for another employee who was on sick leave but that that work made her very tired. There was no evidence that she had been engaged in any other form of employment or that at any time since the suspension she had been fit to do work of any particular description. There was no evidence of what might have been suitable employment or business in which the appellant might engage.

17. Counsel for the respondent submitted that the expression "would be able to earn in suitable employment or business" appearing in s69(1)(b) should be construed on the basis of the appellant's physical capacity without regard to the actual availability of relevant work. That submission was made without the support of authority although it may readily be found (eg, Cardiff Corporation v Hall (1910) 1 KB 1009; Baggs v London Graving Dock Ltd (1943) 1 KB 291). A somewhat more liberal view was taken by the New South Wales Court of Appeal in Simpson's Merchandising Pty Ltd v McAdam (1971) WCR 152, although without reference to the line of authority of which the cases which I have mentioned are examples.

18. To a limited extent I accept the respondent's submission. I say to a limited extent, because in its operation s69(1)(b) is affected by s69(4)(b) and (c). The burden of proving the ability to earn income in the terms of s69(1)(b) rests upon the employer (Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 at 22). Once that burden has been discharged the weekly payment is to be reduced accordingly, unless the worker then discharges the onus of proving one or other of the matters referred to in s69(4)(b) or (c). If that onus is discharged, then, notwithstanding that the employer has discharged the onus under s69(1)(b), the weekly payment is not to be reduced or possibly, in the case of part(b), is to be reduced by a lesser amount. However these questions are only capable of arising on an application by an employer to reduce the amount of a weekly payment or on a reference under s86 in the circumstances referred to in Atkinson v Nipper Cleaning Services Pty Ltd (supra).

19. Accordingly, the appeal will be allowed. I make the further following orders:

1 That the orders made by the Workers Rehabilitation and

Compensation Tribunal on 12 December 1994 be quashed.

2 That in lieu of those orders it declared that the

suspension, in or about November 1994, of the weekly payment

being made by the respondent to the appellant was not

authorised by law.

20. I will hear counsel as to any consequential orders.