TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Workers' Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Generally - Sufficiency of claim - Claim for weekly compensation - Medical certificate - Whether required for claim for weekly compensation - Whether sufficient if it certifies incapacity - Substantial compliance with approved form of certificate.

Workers Rehabilitation and Compensation Act 1998 (Tas), s69(1).

QBE Insurance Ltd v Kingston [2001] TASSC 12; Muir v Dance [1997] TASSC 12; (1997) 7 Tas R 1; Pasminco Australia Ltd v Simmons A50/1993; Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240; Thornton v Terry A60/1994, affirmed.

Workers' Compensation - Assessment and amount of compensation - Cessation of payments - Application by worker for continuance of payments - Whether presentation of fresh medical certificate amounts to a new claim for compensation - Whether failure of employer to dispute liability in accordance with the Act renders employer liable to resume payments.

Workers Rehabilitation and Compensation Act 1998 (Tas), ss81A, 81AB.

G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308, affirmed.

Judgment ID Number: [2002] TASSC 59

1 I have had the advantage of reading the Reasons for Judgment prepared by Crawford J. In substance I agree with them and with the order he proposes. I concede that I was in error in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 at 314 in referring to the receipt by an employer of a medical certificate in an approved form as one of the "preconditions to payment prescribed by s81(1)". It was a precondition to payment in that case, but it was one prescribed by s69(1) of the Workers Rehabilitation and Compensation Act 1988 ("the Act") rather than by s81(1). It was common ground that such a certificate had been presented to the employer and nothing therefore turned on the point.

"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 [1996] TASSC 74; (1996) 5 Tas R 445, 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."

It was suggested in the Reasons for Judgment under appeal here ([2001] TASSC 101 at par7) that this statement was inconsistent with my statement at 314 that:

"... 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."

Subject to the correction that the medical certificate in an approved form is prescribed by s69(1) rather than by s81(1), the statement was correct as a generalisation, which was the way it was expressed. The later statement, however, related specifically to the case in hand. In view of the fact that the existence of such a certificate in respect of the worker Ryan was accepted, the only live issue on his reference was whether the preconditions of s81(1) had been established. The same factual situation isolated compliance with s81(1) as the only live issue on the worker's reference in Freemasons Homes of Southern Tasmania v Greenwood (supra).

3 With respect to the issue whether or not the certificates in this case were in a form approved by the Workplace Safety Board as required by s69(1), Crawford J has noted that no finding in respect of this was made by the Tribunal and that without knowing whether the Board has approved a form of certificate, and if so, what that form was, it is impossible for this Court to determine whether the certificates complied with the form. I would only add that the Act, s49(1), provides that the following provisions apply to a proceeding before the Tribunal:

"(a) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit."

It is inconceivable that the Tribunal, which routinely deals with proceedings in respect of claims for weekly payments of compensation, would be unaware of the approved form. I reject as without merit the appellant's submission that there was no evidence before the learned Chief Commissioner as to what was the approved form at the relevant time, namely August 1997 and following, and that as there was no such evidence, it was impossible for him to make any finding as to whether the certificates in question were or were not in accordance with the approved form.

4 The appeal from the Tribunal related only to the determination that the medical certificates dated 18 August 1997 to 24 November 1997 inclusive did not comply with s69(1) and that the Tribunal had no jurisdiction to determine an entitlement in respect of any of those certificates. It adjourned for further hearing the respondent's reference insofar as it related to a certificate dated 6 January 1998 and those that followed. I agree that the appeal should be dismissed and that the order of the learned primary judge that the Tribunal's determination be set aside and the matter remitted for determination according to law be left undisturbed. It may be convenient for the Tribunal to first determine whether any, and if so, which of the medical certificates dated 18 August 1997 to 24 November 1997 inclusive was substantially in a form approved by the Workplace Safety Board of Tasmania, for if any certificate is not in an approved form, the reference in respect of such a certificate must be dismissed. If a certificate does, however, comply with s69(1), the question to be answered is whether, in the circumstances of this case, the respondent made a claim for compensation within the meaning of ss81 et seq when presenting the first such certificate in approved form. If that question is answered affirmatively, the liability of the appellant to pay weekly compensation is established by virtue of s81AB in respect of periods covered by medical certificates complying with s69(1). If answered in the negative, the respondent loses the benefit of the deemed liability provided by s81AB and must prove that total or partial incapacity for work resulted from the injury suffered by her. In view of the informal nature of the proceedings before the Tribunal (s49), the Tribunal will have a discretion whether or not to receive further evidence from the parties.

5 The appellant, through its agency, the Department of Community and Health Services, employed the respondent. On 28 October 1994 she made a claim for compensation. At the time it was made, the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s34(1), provided that a claim for compensation shall be in the prescribed form. The form was then prescribed by Statutory Rule 151/1992. The respondent's claim was in the prescribed form. In it, the respondent asserted that she first noticed her "injury or condition" at 10.15am on 17 October 1994. In answer to the question "type of injury or disease or part of body affected", the respondent wrote "work related stress anxiety". The respondent went on to write that her "condition" was "solely due to this occurrence". In answer to the question "what happened", the respondent detailed continuing harassment at work concerning flex time, her ability to do her work, whether she should look for another job and the like. The respondent stated in the form that she stopped work on 26 October 1994, being nine days after she first noticed her condition and two days before she made the claim for compensation.

6 The Act, s34(1)(b), then required a claim for compensation to be accompanied by "a prescribed certificate from a medical practitioner". The form was then prescribed by Statutory Rule 173/1992. The respondent supplied such a certificate. It was dated 25 October 1994. The certificate stated (inter alia) that:

* the provisional diagnosis was "work related stress disorder";

* "the injury or disease was stated to be caused by harassment at work";

* the condition is consistent with the stated cause;

* the condition is a recurrence of a previous condition;

* the [respondent] is unfit for any work from 26 October 1994 to 30 November 1994;

* the symptoms of the disease became evident ? persistent ? weeks. [This entry is virtually illegible].

7 Liability to make weekly payments was not disputed in accordance with the Act, s81A as then enacted. That liability was and is, (inter alia) to make weekly payments in accordance with the provisions of the Act with respect to partial or total incapacity for work which "results" from the injury or disease identified by the claim for compensation. Such payments were made.

8 At the hearing before the Workers Rehabilitation and Compensation Tribunal only documentary evidence was received. With respect to that material, the Tribunal found that after a period off work the respondent returned to work but "there were periods in which [the respondent] was partially incapacitated for work, others where she was performing full hours of work and also periods of total incapacity occurring from time to time". The Tribunal went on to find that in the middle of 1997 the worker was back at work doing modified duties for her ordinary hours of work, but also taking periods of sick leave from her employment. During this time no weekly payments were made.

9 However, by a certificate dated 18 August 1997, the respondent was certified totally unfit for work. There followed a number of certificates to like effect, all of which were given to the appellant. The appellant made no payments in consequence of these certificates and accordingly the respondent referred to the Tribunal the issue of her entitlement to weekly payments upon presentation of the certificates.

10 The Tribunal found, and it is not disputed, that the weekly payments made after receipt of the claim for compensation dated 28 October 1994 were lawfully terminated in accordance with the Act, s86(a) as the respondent returned to work.

11 In the Tribunal, the respondent contended that as the appellant did not avail itself of the mechanism provided by the Act, s81A upon receipt of the certificate dated 18 August 1997, and as it did not do so upon receipt of any subsequent certificate, liability to make weekly payments had been determined against the appellant. For the appellant it was contended that the certificates were so deficient in their detail that they did not comply with the Act, s69, and therefore the Tribunal had no jurisdiction. Further, or alternatively, the appellant sought to argue that it was entitled to challenge the respondent's claim that she was incapacitated for work and if she was, that such incapacity was causally related to the disease identified by the claim for compensation dated 28 October 1994.

12 The Tribunal reviewed a number of decisions of this Court and from them concluded that a certificate, presented after a period during which no certificate had been presented, amounts to "a claim for compensation" within the meaning of the Act, s81 and following, in respect of which the appellant was entitled to, but did not, dispute liability. The Tribunal then examined the certificates tendered before it and concluded that none of them certified to the fact that "the worker's incapacity was a result of the original work injury in October 1994". I pause to interpolate that no medical practitioner could reasonably certify that an incapacity was a result of a work related injury unless he or she had been present when the alleged injury was sustained. The best a medical practitioner can do is opine that an incapacity was consistent with having resulted from a work related injury, such opinion being based in large measure upon statements made to the practitioner by or on behalf of the worker (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642).

13 The Tribunal's ultimate conclusion appears in par18 of its reasons for judgment in the following terms:

"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."

"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."

15 The respondent lodged an appeal against that determination. It was heard and determined by Blow J ([2001] TASSC 101). His Honour held that:

* The Tribunal erred in having regard to the Act, s69(1). It should have had regard to ss81 81A and 81AB.

* The certificates were "claims for compensation" within the meaning of those two sections.

* Upon presentation of a fresh medical certificate after payments have been terminated, an employer who does not invoke the dispute procedure enacted by the Act, s81A, thereby admits that the certificate complies with the Act, s69(1) and that he or she is liable to make weekly payments.

* Section 69(1) does not require the certificate to deal with any question of causation and the words "the existence of such total or partial incapacity" in that subsection should not be construed to mean "the existence of a total or partial incapacity for work that results from an injury suffered by a worker". In concluding to the contrary, the Tribunal fell into error.

* The Act only requires substantial compliance with the statutory requirements for a form of certificate.

* Evidence before the Tribunal as to the approved form of certificate is unnecessary.

16 Blow J allowed the appeal, set aside the order of the Tribunal and remitted the matter to it for determination in accordance with law. By its notice of appeal to this Court, the appellant puts in issue all those conclusions.

The obligation to comply with forms approved by the Board

17 It is convenient at this stage, to note that by Act 16/1995, the material sections of which came into operation on 16 August that year, a claim for compensation was to be in "a form approved by the Board" and accompanied by "a certificate in a form approved by the Board and signed by an accredited medical practitioner ...". The same words were incorporated into s69(1) in the place of "the prescribed form from a medical practitioner".

18 There appears to have been no evidence before the Tribunal as to the content of any Board approved form of a medical certificate as at August 1997 or subsequently, nor indeed, whether any form has ever been approved. However, I am in no doubt that having regard to:

* the nature of the Act; and

* provisions such as ss49(1) and 34(3);

no such evidence was necessary. One would expect the Tribunal to be well aware what forms have received Board approval from time to time. Further, I am in no doubt that Blow J was correct when he said that Parliament did not intend to make Board approval of a form a condition precedent to the receipt of workers compensation. It is a little surprising to find that by ground 7 of the notice of appeal to this Court, the State of Tasmania contends that workers are not entitled to receive a determination in their favour upon a dispute as to entitlement to weekly payments unless evidence is adduced in the Tribunal to prove that the Board has approved the form of medical certificate relied upon.

19 For many years the courts defined the intention of legislation by categorising legislative requirements as being either mandatory or directory. If a legislative requirement was characterised as directory, then substantial compliance was sufficient compliance. See Woodward v Sarsons (1875) LR 10 CP 733 at 746; Howard v Boddington (1877) 2 PD 203 at 211; Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 178. Since Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841, that approach has changed. In that case, the High Court expressed approval of the approach taken by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24. In that case the Court of Appeal criticised what was described as "the illusive distinction between directory and mandatory requirements". The Court of Appeal said that in determining the issue of the validity of an act done in breach of compliance of a statutory requirement, regard should be had to the purpose of the Act, having regard to the language of the relevant provision and the scope and object of the whole statute. See also Hatton v Beaumont [1977] 2 NSWLR 211; Freemasons Homes of Tasmania v Price A2/1994. Merely to state the proposition that Parliament:

* intended that Board approval of a form of medical certificate; and/or

is necessary for the validity of a claim for weekly payments demonstrates its absurdity. Substantial compliance with a Board approved form is all that is necessary.

Some fundamental principles of workers compensation law

20 Although the workers compensation law in this State has undergone some substantial changes since the enactment of the Workers' Compensation Act 1927, the fundamental principle that has underpinned the law of workers compensation for many years remains unaltered. That principle is that upon the happening of an event prescribed by the Act, s25, the employer incurs liability "to pay compensation in accordance with [the] Act". This liability is inchoate until the occurrence of one or more of the events prescribed by the Act, eg, ss67, 69 and 75. In addition, the Act, s32 et seq, prescribe certain conditions precedent that must be fulfilled prior to the employer's liability arising. In these fundamental respects there is no distinction to be drawn between the provisions of the Workers Compensation Act 1927 and the corresponding provisions in the Workers Rehabilitation and Compensation Act 1988. With respect to this basic principle, I said in Electrolytic Zinc Company of Australasia Ltd v Meister A23/1990 at 8:

It has long been accepted in the field of workers' compensation, as between employer and employee that, when a worker suffers a relevant event in the prescribed circumstances, there is imposed on the employer an immediate obligation to pay compensation when, and to those persons and in the amounts which the Act specifies, in relation to events which may thereafter occur and which result from the relevant event. See Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32 at p42; 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 pp202, 203."

21 A major shortcoming of the 1927 Act was the absence of any provision which provided a speedy resolution mechanism in the case of a dispute over liability to make weekly payments. In a considerable number of cases, the employer neither admitted nor denied a claim for compensation by way of weekly payments. In those cases the worker was compelled to commence proceedings for compensation in this Court. Many of those claims were met with blanket denials that did no more than put the worker on proof that there had been a compensable injury and resultant incapacity. Not infrequently the litigation dragged on for years. To circumvent this problem, the Act set up a specialist tribunal and, by s81, cast an obligation on an employer who wished to dispute a claim for compensation by way of weekly payments and/or the cost of benefits payable under Division 2 of Part VI, to raise that dispute very soon after the claim was made. In Precise Timbers Pty Ltd & Anor v Burgess A70/1991, this Court held that upon a proper construction of the Act, an employer's failure to dispute a claim for compensation resulted in the issue of liability to make those payments being conclusively determined against the employer. By Act 48/1996, Parliament put this aspect of the matter beyond doubt by enacting s81AB which provides that in the event of an employer failing to invoke the dispute mechanism upon receipt of "a claim for compensation in relation to an injury", "the employer is taken to have accepted liability in respect of that claim". The intention of Parliament in the enactment of the Act, ss81 and 81A was described by Cox CJ in Freemasons Homes v Greenwood [1996] TASSC 74; (1996) 5 Tas R 445 at 450 as follows:

"The clear intent of ss81 and 81A is to require the employer, upon receiving a claim for compensation, to make up his mind promptly whether to pay or to dispute the worker's right to payment. If he fails to do the latter, he is under a clear obligation to do the former and the worker has a corresponding right to receive the payments. The employer in these circumstances still has the right to seek relief from payment under ss81A(5), 86 or 88 and may, on such an application, challenge the worker's right to payment, as the appellant sought to in this case, either by virtue of failure to comply with s32(1) or because the incapacity is not caused by the injury."

22 The nature and scope of the Act, ss81 and 81A need to be considered in the light of the historical statutory framework. At the outset, it is noted that those sections only apply in a case where a worker claims entitlement to compensation by way of weekly payments and/or claims the cost of any benefits payable under Division 2 of Part VI. In Freemasons Homes v Greenwood (supra) Zeeman J said at 455 - 456:

"Section 81(1) cannot be read literally. It cannot require that any worker who makes a claim for compensation be paid a weekly payment. The Act, PtVI provides for two types of compensation, namely what is described as basic compensation, which includes weekly payments and lump sum payments in respect of death and specified injuries, and what is described as additional compensation, in respect of medical and other services and travelling expenses. A claim for compensation may be made in circumstances where the worker does not assert an entitlement to a weekly payment at all because no incapacity for work has resulted from the injury. The worker may merely seek payment in respect of medical or other services necessitated by the injury and payable pursuant to the Act, PtVI, Div2. It cannot be the case that s81(1) obliges an employer to commence making a weekly payment to such a worker. It follows that s81(1) is subject to some implied limitations. At the very least it only applies to a claim for compensation which in its terms asserts some incapacity for work because, absent such incapacity, the Act makes no provision for a weekly payment."

23 Bearing in mind that ss81 and 81A only apply to cases where there is a claimed entitlement to weekly payments and/or the cost of any benefits payable under Division 2 of Part VI, and bearing in mind that those provisions were enacted as part of a scheme to overcome the delay factor inherent in the 1927 Act, it is necessary to read those sections in conjunction with s86. Together they provide a scheme so that once an employer has started making weekly payments, that employer may only terminate or reduce them in the circumstances prescribed by that section or pursuant to an order of the Tribunal on an application on behalf of the employer pursuant to the Act, s88. See Chorley v Hazel Pty Ltd A17/1993.

24 As I understand the scheme of the Act, if a worker's claim is for any form of compensation other than weekly payments or benefits payable under Division 2 of Part VI, ss81, 81A and 81AA have no application. Entitlement to any other compensation requires proof that an injury was suffered as prescribed by the Act, s25, and that notice of injury and a claim for compensation has been made. But, compliance with the latter obligations do not require the employer to take any immediate action to avoid incurring liability as is the case of a claim for weekly payments or other benefits. In cases other than those involving weekly payments or the cost of any benefits payable under Division 2 of Part VI, the employer may do nothing and simply wait until the worker refers the matter to the Tribunal and obtains an order for payment.

25 This Court has held on a number of occasions that that with respect to an injury, there is no need to comply with the requirement to give notice of injury and to make and serve a s32 claim for compensation on more than one occasion. This is so regardless of when entitlement to payment of compensation is asserted. See eg, Chorley v Hazell Pty Ltd (supra); Harris v TSS Pty Ltd and Sun Alliance Insurance Group Ltd A46/1992; Jones v Jones (1996) Tas R 273. This proposition is consistent with the well established principle of workers compensation law that once liability to pay compensation for an identified injury is established, entitlement to receipt of the various forms of compensation resulting from that injury arises upon satisfaction of the statutory conditions precedent for each of those forms of compensation.

26 In the case of weekly payments, the statutory conditions precedent prescribed by the Act, s69(1) are that total or partial incapacity for work has resulted from an injury and that there is a medical certificate, substantially in the approved form, that supports the existence of such incapacity. Section 75 imposes liability to pay for medical expenses where:

* an employer is liable to pay compensation pursuant to s25; and

* the worker has incurred expenses "as a result of his injury".

27 All the events which convert the inchoate liability to pay compensation into an immediate liability to pay compensation are causally linked to the s25 injury in respect of which the worker must have made a claim for compensation as provided by the Act, s32. With great respect to Blow J, I find that I cannot agree with this statement in his reasons for judgment at par19:

"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."

28 I venture to adopt the following passage from my judgment in Muir v Dance [1997] TASSC 12; (1997) 7 Tas R 1 at 5:

"Medical certificates play a central role in the Workers Compensation Act.

* A medical certificate may fix the date incapacity occurred by reason of an injury being a disease (s3(5)).

* A claim for compensation must be accompanied by a medical certificate (s34(1)), but there is no requirement that the terms of the certificate and the claim form be consistent. See Harris v TSS Pty Ltd & Anor Serial No A46/1992 at 10.

* In order to be entitled to weekly payments, a certificate signed by a medical practitioner must support the existence of incapacity resulting from the relevant injury (s69).

* Termination of weekly payments is justified if a medical practitioner, who has examined the worker, certifies that he or she holds the opinion(s) referred to in s86(1)(c) and there has been compliance with the procedural requirements of that section."

29 Section 69(1) concerns incapacity for work which results from an injury. The obligation to make weekly payments is dependent upon there being:

* an incapacity for work which results from the injury in respect of which there is a liability to pay compensation; and

* a certificate that supports the existence, not merely of an incapacity for work, but which supports the existence of such incapacity, viz, one that results from the injury in respect of which there is a liability to pay compensation.

30 With respect to others who take a different view, it seems to me, that to construe s69 in any other way would be contrary to the fundamental principle that underpins the whole of the workers compensation legislation. If a certificate did no more than support an incapacity for work, the combined effect of ss81AB and 86 could operate to compel an employer to continue to make payments for an incapacity which, upon the face of the certificate, did not result from the injury in respect of which the employer was liable to pay compensation. It is obvious that a medical practitioner cannot certify to the fact that an injury or disease caused an incapacity, but the subsection does not require that level of certification. It requires no more than support for that proposition. An expression of medical opinion that the incapacity is consistent with having resulted from a stated injury or disease would provide such support.

Can a medical certificate be a "claim for compensation" within the meaning of the Act, s81, et seq?

31 It is necessary to consider the issue of whether the medical certificate dated 18 August 1997 and those subsequently tendered, amounted to a claim or claims for compensation. The issue is more accurately expressed; can a medical certificate constitute a claim for compensation within the meaning of the Act, ss81, 81A and 81AB and if yes, in what circumstances?

32 In this case, the issue calls for a consideration of the legislation prior to the substantial amendments that were made to the Act by Act 99/2000 and which came into operation on 1 July 2001.

"Unless the contrary intention appears a claim for compensation means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim."

34 In G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308, Cox CJ said that a medical certificate presented, not after lawful termination of weekly payments, but after a period (in that case eight months) during which no certificate had been presented, was a claim for compensation within the meaning of the Act, s81, et seq. The other members of the Full Court did not decide this point. However, the view of the learned Chief Justice in Barber has subsequently been adopted by judges of this Court sitting at first instance. The judgment from which this appeal is brought is one such instance. See also State of Tasmania v Cook [2000] TASSC 82; (1999) 9 Tas R 191; Swan v Miller [2001] TASSC 15; State of Tasmania v West [2001] TASSC 62.

35 Sections 81, 81A, 81AA and 81 AB have no effect until after the employer's receipt of a claim for compensation. It is undoubted that a medical certificate per se is not a claim for compensation as enacted in those sections. To so regard every medical certificate would run contrary to the purpose of the legislation as enacted by s86 which limits the circumstances in which an employer can terminate weekly payments to those prescribed by the section.

36 Is a medical certificate capable of becoming a claim for compensation for the purposes of the Act, s81 et seq, and if yes, what are the circumstances that will bring about such a result? The answer to this question is, of course, a matter of statutory construction.

37 Zeeman J observed in Chorley v Hazell Pty Ltd (supra) at 2, that a claim for compensation may mean different things depending upon the statutory context in which the expression appears. In FAI Insurance Co Ltd v MMI-CMI Insurance Ltd A14/1992, Zeeman J said

"Difficulties arise as to how the expression 'claim for compensation' appearing in s.81 is to be construed. There are some difficulties in applying the extended meaning given to that expression by s3(1). Section 81(1) and (2) speak of a claim for compensation being 'received'. That is indicative of the reference being to a claim for compensation within the meaning of s32(1)(b). There can be only one such claim in respect of any one injury. The making of a claim removes one of the bars to an entitlement to compensation provided for by s32(1)."

There seems to be little doubt that it is a claim for compensation within the meaning of s42, but a referral of it where it is a continuing certificate would be a pointless exercise because of s86(1).

38 In G L & V N Barber Pty Ltd v Ryan, Cox CJ considered Chorley, FAI Insurance and Harris v TSS Pty Ltd at some length, and concluded that none of them decided that a medical certificate cannot be a claim within the meaning of the Act, ss81 and 81A. His Honour said at 318 - 319:

"It does not follow, however, that in all cases a claim for compensation must be either the initial claim to which s32 applies or some matter or question within the extended definition. Section 32 is not expressed to govern every claim for compensation, however defined. Certainly it applies to the initial claim. But if a claim such as the present or a further claim for compensation after lawful termination pursuant to s86 is made, s32 does not in its terms require any further notice to be given of the injury, nor does it impose any further time limitation. Provided the initial claim has met the requirements of s32, the worker presenting any new claim will not be at risk of disentitlement in respect of it through failure to give further notice or by virtue of the lapse of time. Both such claims, in my view, constitute claims for compensation to which s81 et seq apply, notwithstanding that they might also fit the extended definition."

39 With respect, I agree with that expression of view. Where payments have been lawfully terminated in accordance with the Act, receipt of a medical certificate will fall within the definition of a claim for compensation and its receipt will entitle the employer to take advantage of the provisions of the Act, s81A and 81AA.

40 In Barber the learned Chief Justice said at 320:

"When s81AB speaks of the consequence of a failure to dispute liability to pay compensation in accordance with ss81AA or 81A, it is speaking necessarily of those claims which are susceptible of dispute under the last-mentioned sections, namely claims which in their terms assert either some incapacity or the incurring of an expense for which a benefit is provided. Hence the deeming part of s81AB which says that failure to dispute liability to pay compensation results in the employer being taken to have accepted liability 'in respect of that claim' can only result in liability attaching in respect of the claim in fact made, whether it be for weekly payments or benefits or both. A new claim, whether it be for weekly payments where an initial claim for benefits only has been made (or vice versa), or for weekly payments where earlier payments have been lawfully terminated under s86, or have lawfully ceased due to the expiry of a medical certificate and the absence of a fresh one, is not one in respect of which the employer is taken to have accepted liability because he failed to refer some earlier claim in accordance with ss81AA or 81A. On the other hand, a referral under s42 or s86(4) of a purported termination, not being a new claim but rather a matter or question arising in connection with or incidental to an earlier claim, should not be regarded as a claim for compensation under s81, failure to dispute which within fourteen days has the consequence that the merits of the matter referred cannot be canvassed before the Tribunal."

41 I also respectfully agree with that statement of the law.

42 So much difficulty has arisen over this matter because of the role that the legislation confers upon the medical certificate and the dependency upon the medical profession to complete the certificates as if they were legal practitioners. The form of medical certificate tendered in this case asks the following key questions:

* What incident or disease did the worker state was the cause of the condition?

* When was that incident or evidence of symptoms of the disease apparent?

* What was stated to be the cause of the injury or disease?

* Was the condition consistent/inconsistent with the stated cause?

43 These questions are clearly linked to the central provisions of the Act, but often involve difficult questions of law and fact. Even in cases where there is no such difficulty, certificates frequently appear to have been completed without much consideration having been given to the issues raised by the questions. In a case such as the present, where a medical certificate is received by an employer after payment of weekly compensation has lawfully ceased, liability to meet that claim only arises if:

* there is incapacity for work that results from an injury in respect of which the employer has received a notice and a claim for compensation in accordance with the Act;

* that claim either was not disputed, or was disputed and the issue determined against the employer; and

* the certificate supports the existence of such incapacity.

44 It follows that to constitute a valid claim for the purpose of ss81, 81A, 81AA and 81AB the certificate must at least identify the incapacity and the injury or disease that is alleged to have caused that incapacity. A means of ascertaining whether a sufficient claim has been received may be to enquire if there has been compliance with the provisions of the Act, s69. Another may be to enquire if the certificate identifies with sufficient precision the incapacity for work and the causal link between that incapacity and an injury or disease. Without this information the employer is not able to determine whether he or she should take advantage of the provisions of s81A or 81AA.

45 The certificates that were the subject of the order of the Tribunal in this case were deficient. There was no evidence to suggest that their presentation to the appellant was accompanied by oral or written material which overcame the deficiencies. An important matter was whether any claimed incapacity for work was related to the October 1994 disease which was the subject of the s32 claim for compensation. Only one such certificate gave a date for the cause of the disease. That was 7 October 1997, but the same certificate stated that the condition was an aggravation of an existing condition. Several of the certificates simply stated that the respondent's condition was "work related stress" and the cause "work situation". In my opinion, the certificates did not contain sufficient information to amount to a claim for compensation and consequentially, the appellant's failure to invoke the dispute or delay mechanisms provided by the Act ss81A or 81AA respectively had no effect.

46 This Court has held on more than one occasion that entitlement to weekly payments is dependent (inter alia) upon compliance with the Act, s69(1). See Muir v Dance (supra), Pasminco v Simmons A 50/1993 and Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240. In the light of well established authority, I find myself in respectful disagreement with the learned judge at first instance that a failure to invoke the dispute mechanism on receipt of a claim means that the employer accepts liability to make weekly payments even in the absence of a medical certificate that substantially complies with the statutory requirements of the s69(1).

47 I would allow the appeal and reinstate the order of the Tribunal.

48 The respondent was employed by the appellant. She initially claimed compensation under the Workers Rehabilitation and Compensation Act 1998 ("the Act") in October 1994 and was paid weekly compensation 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.

49 A series of medical certificates was presented by her to the appellant, certifying her unfitness for any work from 18 August 1997. The first of them bore that date and asserted that she had presented with "work-related stress" caused by "work situation". The condition was described as "a recurrence of a previous condition" and it was stated that she was unfit for any work from 18 to 31 August 1997 inclusive. There then followed a number of medical certificates for subsequent periods of time.

50 An area of dispute between the parties concerned whether the presentation to the employer of the certificate of 18 August 1997 amounted to a claim for compensation as that expression was used in the Act, ss81, 81A and 81AB. The appellant did not purport to invoke s81A to dispute liability to make a payment, nor did it purport to invoke s81AA to defer making a decision about the matter. It simply did nothing and as a result, the respondent, on 12 July 2000, referred to the Workers Rehabilitation and Compensation Tribunal what she expressed as her application "for payment of workers compensation entitlements pursuant to the Workers Rehabilitation and Compensation Act in respect of my work related stress condition occurring in October of 1994".

51 In the Tribunal, the Chief Commissioner, held that the certificate of 18 August 1997 and some of the subsequent certificates, did not comply with s69(1), because they neither provided evidence that the incapacity resulted from the original injury, nor did they support that fact. He held that "the certificates are therefore incapable of being treated as claims for compensation" and that "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".

52 However, the claim was not dismissed. The Chief Commissioner noted that a certificate of 6 January 1998 appeared to satisfy the requirements of s69(1), but whether that and subsequent certificates were in a form approved by the Workplace Safety Board of Tasmania, as required by s69(1), and whether anything turned on that, had not been addressed. He stated that if that certificate and those following complied with the Act, they created an entitlement in the respondent to payment of compensation. The Chief Commissioner had earlier referred to the view expressed by the Chief Justice in the Full Court in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 at 318 - 319, that if there had been a lawful cessation or termination of weekly compensation payments, the presentation of a claim for their resumption constituted a claim for compensation to which s81 et seq applied. The Chief Commissioner said that it was clear that "if the subject medical certificates were a claim for compensation within the meaning of that term as used in Sections 81, 81A and 81AB of the Act then the failure of the employer to formally dispute that claim for compensation denies them the opportunity to now litigate the issue of liability". The effect of an employer failing to dispute a claim for compensation generally, according to the Chief Justice in Freemasons Homes of Southern Tasmania v Greenwood [1996] TASSC 74; (1995) 5 Tas R 445 at 450, would be that "the only issue is whether the respondent (employer) had received a claim for payment of weekly compensation in relation to an injury to a worker employed by it".

53 I point out that on more than one occasion the Chief Commissioner referred to the question whether medical certificates amounted to claims for compensation. Medical certificates could not in themselves constitute claims for compensation under the Act. For present purposes, a claim for compensation is a claim that seeks payment of one or more of the various forms of compensation for which provision is made in the Act, PtVI. The factual circumstances surrounding the presentation of a medical certificate to an employer might evidence that a claim for compensation has been made. It will be a question of fact in each case, whether a claim has been made and what the claim is. But a medical certificate will not itself amount to a claim, or to the making of a claim for compensation.

54 The respondent successfully appealed to a judge who applied what had been said by the Chief Justice in G L & V N Barber Pty Ltd v Ryan (supra) to the effect that a claim for the restoration of weekly payments, when earlier payments had been lawfully terminated under s86, or had lawfully ceased upon the expiry of a medical certificate not succeeded by a fresh one, amounted to a "claim for compensation" for the purposes of ss81, 81A and 81AB. The learned judge held that as the appellant had neither disputed liability as provided for in s81A, nor deferred a decision whether to accept or dispute liability as provided for in s81AA, the appellant, by operation of s81AB, was therefore "taken to have accepted liability in respect of that claim". It is with the question whether the Chief Justice was correct that I first deal.

55 Section 81AB has since been amended, but at all relevant times it was in the following terms:

"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 81AA or section 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim."

56 In its opening words the section referred in general terms to receipt of a claim for compensation and concluded by stating that the employer was taken to have accepted liability in respect of such a claim if it was not disputed in accordance with ss81AA or 81A. However, it is apparent from the heading of PtVII, Div1, in which the section is contained ("Provision relating to weekly payments and other benefits"), and from a consideration of the two sections referred to in it, particularly s81A, that the reference to receipt of a claim for compensation was a reference only to a claim for compensation in the form of weekly payments and to a claim for compensation in the form of payment of the cost of benefits (for medical and other services) under PtVI, Div2.

(a) to pay compensation by way of weekly payments for an injury referred to in section 81(1); or

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

must, within 14 days of receiving the claim for compensation in respect of the injury to the worker -

(c) serve the worker with written notice that the employer disputes liability -

(i) to pay compensation by way of weekly payments and must inform the worker of the reasons for disputing liability; or

(ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury and must inform the worker of the reasons for disputing liability; and

58 Following subsections explained what might happen if the employer disputed liability under subs(1). Subsection (5) dealt with the question of the continuing liability of the employer to pay weekly compensation or the cost of any benefits payable under PtVI, Div2, in these terms:

"(5) Notwithstanding that liability has not been disputed in accordance with subsection (1) or section 81AA(3), 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) of this section or section 81AA(3), as the case may be, refer the matter to the Tribunal."

59 Having regard to the provisions of ss81AA and 81A in particular, the plain literal meaning of s81AB in regard to weekly compensation was that if an employer received a claim for weekly compensation in relation to an injury to a worker employed by the employer and the employer did not, in accordance with ss81AA or 81A, dispute liability to pay that compensation, the employer was taken to have accepted liability in respect of that claim. In the same way, the plain literal meaning of s81AB in regard to compensation in the form of payment of the cost of benefits under PtVI, Div2 was that if an employer received a claim for the payment of such a cost in relation to an injury to a worker employed by the employer and the employer did not, in accordance with ss81AA or 81A, dispute liability to pay that cost, the employer was taken to have accepted liability in respect of that claim.

60 There was nothing in the sections to which I have referred that limited the meaning of a "claim for compensation" to a claim in respect of an injury for which a worker had not previously made a claim for compensation. Subject to one aspect to which I will refer later in these reasons, I respectfully concur with the analysis of the statutory provisions and authorities made by the learned Chief Justice in G L & V N Barber Pty Ltd v Ryan (supra), and his Honour's conclusion that in a case where weekly payments had ceased, if for no reason other than that medical certificates verifying a continuing incapacity had not been presented, a claim for a resumption of weekly payments amounted to a claim for compensation as that expression was used in ss81, 81AA, 81A and 81AB, at the time relevant to this appeal.

61 Section 34(1) requires that "a claim for compensation shall ... be in a form approved by" the Workplace Safety Board of Tasmania. However, the provisions of s34 only concern the form of the claim for compensation, and what must accompany it when it is given to the employer. By s32(1)(b), it must in the ordinary course, be made within six months after the date of the occurrence of the injury, if the worker is to be entitled to compensation under the Act for the injury. In other words, it is to the initial claim for compensation with respect to an injury that s34 applies. Harris v T S S Pty Ltd 46/1992 at 6; Swan v Miller [2001] TASSC 15 at 3. Once the initial claim in the approved form has been made, there is no need to make a claim in that approved form again with respect to the same injury.

62 In this case, the appellant originally claimed compensation on 28 October 1994. Her claim form, under s34(1), explained that she was suffering from "work related stress & anxiety" and that her condition was first identified on 17 October 1994. In answer to a question "what happened" she detailed continued harassment at work concerning flex time, her ability to do her work, whether she should look for another job and the like. She stated that she had stopped work on 26 October 1994.

63 In its form at the time, s34(1) required her claim to be accompanied by a prescribed certificate from a medical practitioner. She provided a certificate dated 25 October 1994 of Dr Cedric Meyerowitz, stating that he examined her that day; that she presented with "work related stress & anxiety" caused by a disease, symptoms of which became evident in the "past few weeks"; that the disease was stated to be caused by harassment at work, was consistent with the stated cause and was a recurrence of a previous condition; and that the appellant was unfit for any work from 26 October 1994 to 30 November 1994.

64 It was common ground before the Chief Commissioner that the claim for compensation was accepted by the respondent and weekly compensation payments were made. In the reasons for his decision delivered on 27 March 2001, the Chief Commissioner noted from documents that the appellant returned to work but there were periods in which she was partially incapacitated for work, others when she was performing full hours of work and also periods of total incapacity from time to time. In the middle of 1997 she was back at work doing modified duties in her ordinary hours of work, but also taking periods of sick leave.

65 At the hearing before the Chief Commissioner on 13 February 2001, evidence in a limited form was received. There was no oral or written testimony. The Chief Commissioner stated in his reasons that counsel for the appellant merely tendered documentary evidence in the form of the original claim for compensation dated 25 October 1994, prescribed medical certificates, payroll details and what he described as "other documents presumably to be used to establish the quantum of weekly payments to be made to the worker". The medical certificates included a further 14 certificates from Dr Meyerowitz, the last of which was dated 2 September 1996 and which stated (inter alia) that the appellant was fit for selected work with limitations from 1 September 1996 to 30 September 1996. There then followed a series of 20 medical certificates from five medical practitioners in all. The first of that series was one of Dr Mehl dated 18 August 1997 and the last was from a Dr Clapton dated 9 September 2000. Between them, they certified that the appellant was either "unfit for any work" or "incapacitated for work", depending on the form used, from 18 August 1997 until 3 December 2000. I presume that there was no evidence concerning when, how or even whether the medical certificates were delivered by the appellant to the respondent, although I note that in his reasons the Chief Commissioner referred to a submission by counsel for the appellant, that included a statement that the certificate dated 18 August 1997 was delivered to the respondent. It appears to have been common ground that the certificates were "presented" to the respondent and that the respondent had not reacted to them by either disputing liability under s81A or by paying weekly compensation.

66 It therefore appears that there was no evidence that any of the certificates were presented to the respondent with any form of oral or written statement of what the appellant was claiming. Before the Tribunal and at the hearing of the two appeals, arguments were advanced upon the basis that the certificates were presented and nothing else.

67 The terms of the medical certificates in the series commencing on 18 August 1997 varied in a number of respects. I will deal first with the one of that date. It was on a printed form headed "Medical Certificate for Workers Compensation" followed by the name of the Act. In a response to the printed requirements of the form, Dr Mehl certified that he had examined the respondent on 18 August 1997; that she had presented with "work-related stress"; that the injury or disease was stated to be caused by "work situation"; that the condition was a recurrence of a previous condition and it was likely to require a rehabilitation program; and that the respondent was unfit for any work from 18 August 1997 to 31 August 1997 inclusive.

68 The Chief Commissioner addressed the question whether the certificate of 18 August 1997 and the later certificates prior to one dated 6 January 1998, complied with the requirements of s69(1) and concluded that they did not because they did not provide evidence that the incapacity resulted from the original injury, nor did they support that fact. When referring to the original injury, he was referring to the one that resulted in the incapacity that commenced in October 1994.

69 The Chief Commissioner was correct to consider whether the certificates conformed with s69(1). However, another question he might have considered as a possible route to rejecting the respondent's argument that the appellant, by operation of s81AB, was to be "taken to have accepted liability in respect of that claim", was whether the respondent had made a "claim for compensation", as that expression was used in ss81 et seq.

70 It was the respondent's case before the Tribunal that because the appellant did not seek to dispute her claim for compensation in the manner provided by s81A, liability in respect of her claim was settled by the application of s81AB. That raised the question of whether the respondent had in fact made a claim for compensation under s81 et seq and if so, what the substance of the claim was. In my opinion, the expression "a claim for compensation" in those sections must be given a meaning which to some extent is a restricted one. If given a literal meaning, all a claimant would have to express to an employer, is that weekly compensation or payment of the cost of a medical expense is claimed under the Act, without having to identify the injury upon which the claim is based. Something more than that should appear before it can be said that a claim for compensation has been made. At the very least, the employer is entitled to have sufficient information concerning the particular injury upon which the claim is based. The facts of this case provide a good example. The appellant had previously accepted the respondent's claim for weekly compensation for an injury, that was a disease, that first resulted in an incapacity that commenced in October 1994. The medical certificate of 18 August 1997 and a number of certificates that followed it, did not identify whether the further incapacity from that date was claimed to have resulted from the original injury. There was apparently no evidence that any information about the matter was communicated to the appellant. It was important that the nature of the claim in that regard could reasonably be understood. If the claim arose out of the original injury, then the notification and claim provisions of PtIV (ss32 et seq) no longer applied to it. If a fresh injury was being asserted, those provisions did apply to it. Whether the claim was based on the original injury or a fresh injury was important for other purposes, such as the calculation of the limit on the total amount of weekly compensation payable with respect to any one injury, as provided by s69(6).

71 Before an employer can be said to have accepted liability in respect of a claim, because of the provisions of s81AB, it is necessary that the injury upon which the claim is based has been identified. If it has not, then it is impossible to identify the liability that the employer is to be deemed to have accepted.

72 It is not my opinion that in every case, a claim cannot be regarded as a claim for compensation under s81 and the following sections, unless at the time the claim is made the precise injury is identified. No form of claim is prescribed by PtVII. In many cases, the injury upon which the claim is based will be obvious, without the need for it to be specified. But in this case, there may well have been insufficient evidence before the Tribunal to enable it to determine just what liability, if any, the appellant should be deemed to have accepted by failing to dispute the claim. At the time of presentation of the medical certificate of 18 August 1997, the respondent might have been intending to claim upon the basis of a fresh injury, whereas the appellant might have thought it was based on the original injury. With such uncertainty surrounding the presentation of the certificate of 18 August 1997, it was open to the Tribunal to conclude that there had been no acceptance of liability in respect of a claim by the respondent, because the nature of the claim was not reasonably apparent. In this regard, the test should be an objective one, to be determined in the context of the facts and circumstances established by the evidence. If the injury upon which the claim was based was reasonably apparent, then it would have been open to the Tribunal to find that liability for the claim had been accepted and, subject to a consideration of compliance with s69(1), that weekly payments should have been made.

73 I repeat that a mere medical certificate will not itself amount to a claim for compensation. However, evidence of the factual context in which a medical certificate is presented, and of the circumstances of its presentation, may be sufficient to enable the Tribunal to find that a claim for compensation has been made and accepted by the employer through its failure to dispute the matter in accordance with ss81AA or 81A.

74 I observe with respect, that in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 at 314, the learned Chief Justice was in error when he referred to a precondition to payment prescribed by s81(1) was receipt of a claim for compensation accompanied by a medical certificate in an approved form. Section 81(1) did not prescribe a medical certificate. If a worker claimed payment of the cost of a medical service, the Act did not require a medical certificate at all, except when a claim was made for the first time with respect to an injury. See ss32(1)(a) and 34(1)(b). The requirement for a medical certificate, when weekly compensation was claimed, was and still is to be found in s69(1) in the following terms:

"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 -

(b) in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker's normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."

75 The Chief Commissioner referred to a statement by Underwood J in Brambles Holdings Ltd v Pincott A30/1994 at 5, that "inferentially, by the presentation of a certificate ... the respondent asserted the existence of those statutory conditions entitling him to a weekly payment", as authority for the proposition that a medical certificate could be evidence of the fact that an incapacity resulted from the original injury. With respect, I consider that to be erroneous. In my view all his Honour was saying in that passage was that it could be inferred, on the facts of that case, that by the presentation by the worker of the medical certificate in evidence, which certified incapacity for a period of three months, the worker was asserting that total or partial incapacity for work had again resulted from the injury which had previously incapacitated him and that the existence of that incapacity was supported by the certificate as required by s69(1).

76 The Chief Commissioner also relied on a statement by Slicer J in QBE Insurance Ltd v Kingston [2001] TASSC 12 at 3 as authority for the proposition that a medical certificate that complies with s69(1) amounted to evidence of the fact that the incapacity resulted from the relevant injury. What his Honour said was that "the absence of such a certificate precludes a finding that the incapacity claimed was a consequence of the injury". I am not altogether sure what his Honour meant by that, but in any event it is clear that the absence of such a certificate precludes a worker being entitled to be paid weekly compensation.

77 In his reasons for determining the appeal to the court below in favour of the respondent, the learned judge held that if a claim for compensation was made under PtVII (ss81 et seq) and the employer did not dispute it in accordance with the provisions of s81A and was thereby taken to have accepted liability in respect of the claim because of the provisions of s81AB, the employer was to be taken as not to be relying on any non-compliance with the certification requirements of s69(1). With respect I do not agree. Such a view is contrary to a long line of authority that a worker is not entitled to be paid weekly compensation in respect of a period of incapacity unless a medical practitioner has certified that the worker was incapacitated for the relevant period. For example, in QBE Insurance Ltd v Kingston [2001] TASSC 12 Slicer J held at 3, that the medical certificate required by s69(1) is a precondition to the entitlement afforded by the Act. See also Muir v Dance [1997] TASSC 12; (1997) 7 Tas R 1 per Underwood J at 8 - 9; Pasminco Australia Ltd v Simmons A50/1993 per Wright J at 8; Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240 per Zeeman J at 245; Thornton v Terry A60/1994 per Cox J at 3, 4. It has always been considered to be the case that unless the worker continues to provide the necessary medical certificates for further periods of incapacity, the employer is under no obligation to continue paying weekly compensation, notwithstanding that some payments have already been made. I therefore disagree with the learned judge, with respect, that s69(1) was irrelevant to the issues before the Chief Commissioner.

78 However, I respectfully agree with his Honour that s69(1) did not require a medical certificate to deal with any question of causation. The certificate was required to support only the existence of a total or partial incapacity for work. I agree that the words "the existence of such total or partial incapacity" in the subsection should not be interpreted as meaning the existence of a total or partial incapacity for work that results from any injury suffered by a worker. The ordinary, natural and grammatical meaning of the words does not suggest such an interpretation. Further, the legislature could hardly have expected a medical practitioner, in the usual case, to be able to certify that a particular incapacity was caused by a particular injury that almost certainly, the practitioner did not witness. At best, all the practitioner could certify would be that the incapacity was consistent with having resulted from a particular injury claimed to have occurred by the worker. The subsection certainly did not provide for that.

79 Section 69(1) provided for the medical certificate to be in a form approved by the Workplace Safety Board. Legislative provisions that forms be approved by an authority rather than prescribed by regulation or rule, are becoming commonplace. My understanding of the reason for that is that it renders unnecessary the making of regulations or rules and therefore avoids unnecessary red tape. There is no evidence in this case of the form, if any, that has been approved by the Board for use under s69(1). The Board could require in such a form that the medical practitioner state what injury the worker claimed to have caused the relevant incapacity and whether the practitioner was of opinion that the incapacity was consistent with the stated injury. In that way, the Board could ensure that medical certificates contain more than a mere certification as to the existence of incapacity.

80 I understand that the Tribunal was satisfied that each of the medical certificates in evidence complied with the requirement that they certify the existence of incapacity for work. However, the Tribunal made no finding concerning whether any of the certificates were in a form approved by the Board and whether anything turned on that. Without knowing whether the Board had approved a form of certificate and if so, what that form was, it is impossible for this Court to determine whether the certificates complied with the form. Only substantial compliance would have been necessary. Hamilton v Minister for Immigration [1993] FCA 657; (1993) 48 FCR 20 at 32.

81 The learned judge below ordered that the determination of the Tribunal be set aside and he remitted the matter to the Tribunal for determination according to law. Of course, the learned judge's statement of the law was different than my statement of it in these reasons. Although the appeal should to some extent be regarded as having succeeded in my opinion, there is no need for the orders of the learned judge to be overturned. To enable the formal disposition of the appeal, I propose that it simply be dismissed. It will be encumbent on the Tribunal to further consider the reference in the light of this Court's statements of law.