Workers Compensation - Assessment and amount of compensation - Amount of compensation during incapacity - Weekly payments during incapacity - Other matters - Change of Employment - Subsequent claim for diminution of earnings. Muir v Dance 11/1997, considered. Workers Rehabilitation and Compensation Act 1988 (Tas), ss81, 81A. (Aust Dig Workers Compensation [200]).

HOBART, 22 September 1997 (hearing), 30 October 1997 (decision)

The respondent, an ambulance officer, made a claim for compensation, in prescribed form, on 8 May 1993, in respect of an injury suffered on the preceding day. The appellant, not disputing liability, paid compensation for the period 7 May to 18 June 1993, in accordance with medical certificates furnished by the respondent. No further certificates were supplied and in late June or July 1993, the respondent resigned from his position and commenced employment as a sales representative. On 3 April 1995, the respondent served on the appellant a further medical certificate bearing the same date, the relevant portions of which stated:

"I examined John Corba on [3/5/ (sic) 95]

...

The worker is unfit for any ambulance work permanent from [27/6/93] to [../../..] inclusive and may not be fit for any work until [../../..]

...

Is fit for selected work with limitations as specified below from [../../..] to [../../..] inclusive. Current duties as sales representative

...

Comments [unfit for usual ambulance duties, ie lifting, bend (sic) but fit for current duties."

Previously, on 3 February 1995, the respondent had made application in accordance with the then Workers Compensation Act 1988 (Tas) ("the Act"), s42, to the then Workers Compensation Tribunal for the hearing and determination of:

"My entitlement to compensation by way of weekly payments and any benefits payable under Division 2 of Part vi in respect of the injury I suffered to my back on the 7th May 1993 arising out of and in the course of my employment with Tasmanian Ambulance Services."

No explanation was provided as to why the matter was referred two months previous to the obtaining or provision of the certificate. Given that the employer had made all payments which were the subject of claim, it is difficult to discern from the application which "matter" was being referred. Following receipt of the "medical certificate", the appellant, on 11 May 1995, applied, in accordance with the Act s81A and 42, for the hearing and determination of the following question:

"Notwithstanding that liability to pay compensation by way of weekly payments and the cost of any benefits payable under Division 2 of Part VI of the Workers Compensation Act 1988 in respect of the workers claim for compensation dated the 9th May, 1993 for an injury to his back suffered on the 7 May 1993 has not been disputed in accordance with Section 81A(1), the Crown disputes liability to continue to pay such compensation and the cost of such benefits."

No explanation has been provided as to why the respondent's referral did not come before the Workers Rehabilitation and Compensation Tribunal until 25 July 1997, nor why as of that date the appellant's application had yet to be determined. It would have been preferable for the matters to be heard with more expedition, and the appellant's reference first listed. Failure to do so resulted in an outcome which could be perceived as contrary to the purpose of the legislation. At the conclusion of the hearing, the Tribunal ordered that:

"The employer pay the worker the difference between his normal weekly earnings as an ambulance driver and the amount he has been and is earning as a sales representative during claimed periods of incapacity certified in accordance with the Act."

In the course of the hearing, counsel for the respondent asserted that there had been an unjustified termination of benefit under the Act, s86. He did so following his assertion (despite a tendering of an agreed statement of facts which omitted the matter) that the respondent had resigned his employment as a consequence of his back injury. Counsel for the appellant, instead of requiring a full hearing, at least on that matter, and insisting on proof of unsubstantiated assertions, dealt with the matter in the following manner:

"MR McTAGGART: Well in my submission there's been a termination under 86 and that's not justified. Initially because, I would submit that a return to work within the meaning of 86.1A is a return to the preinjury (sic) work.

COMMISSIONER: Okay, I understand that. What the employer has sought to do has amounted to a termination in your submission?

MR McTAGGART: Yes.

COMMISSIONER: An unlawful termination?

MR McTAGGART: Unlawful termination.

COMMISSIONER: Okay. Yes, Mr Owen.

MR OWEN: I apologise Commissioner, I was going to endeavour to be of assistance simply to - -

COMMISSIONER: You always endeavour to be of assistance.

MR OWEN: I was going to assert or suggest that Commissioner, you could make a finding on the assumption that my friend's client had earned less as a sales representative and I've no objection to your finding it on that hypothetical basis, I just am not in a position to agree that as a fact and that was where I - - -

COMMISSIONER: Well I assume Mr McTaggart having submitted that means that it's a fact that he could, if necessary, prove?

MR OWEN: Yes.

MR McTAGGART: I have some documentary evidence which establishes that as a fact Commissioner.

COMMISSIONER: Okay. But you're not prepared, you're not in a position to concede that fact Mr Owen?

MR OWEN: No.

COMMISSIONER: No, okay, all right."

The approach taken by counsel for the respondent and the failure by counsel for the appellant to insist on the proper definition of the evidence relevant to the question and to require a strict definition of the issues might well have contributed to the ensuing confusion. The respondent's successful submission to the Tribunal can be summarised in the following terms.

1 The original claim was not contested by the employer.

2 Ongoing liability was therefore not in issue, subject only to compliance with statutory procedures such as the delivery of a medical certificate.

3 Failure on the part of the employer to invoke the provisions of the Act, s81, precluded any later challenge to a certificate.

4 Thereafter the employee was entitled, subject to the provision of an appropriate certificate, to payment unless and until the Tribunal made an order under the Act, s81A(5), and that a backdated certificate was sufficient to establish requirement to pay compensation.

The essence of the respondent's case is that once notice has been given and a claim not disputed, no further question can be agitated provided that a medical certificate is furnished. The argument is dependent upon a particular interpretation of the decision of this Court in Muir v Dance 11/1997, and the application of the ratio decidendi in Atkinson v Nipper Cleaning Services Pty Ltd Trading As Burrells Hy-Tech Cleaning Service (1992) 1 Tas R 276. The decision of Atkinson related to "a return to work" and the Tribunal applied the reasoning of that decision with respect to the respondent's change of employment to that of a sales representative as entitling him to at least a differential of income. The Tribunal relied on the following passage in Muir v Dance (supra) at 4 as support for its conclusion:

"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. There is nothing in the Act to warrant reading down the effect of the sections that so provide to construe them to mean that unless the certification supporting incapacity refers to incapacity existing at and/or after a medical examination there is no certificate supporting incapacity."

A problem which arises from the respondent's successful argument is that the longer an employee waits until providing a certificate, the greater the entitlement to compensation which is not subject to challenge. In the circumstances of this case, the respondent waited almost two years whilst in gainful employment before providing a certificate claiming a wage differential. Presumably he would not have done so had his actual income exceeded his previous wage. Had he waited longer he could have claimed greater compensation, which, on his argument, was not subject to challenge. Such an outcome affronts the spirit and wording of the legislation.

It is difficult to discern from the reasons for decision delivered by the Tribunal, the basis on which it dealt with the contention advanced by the respondent, although the following passage might illustrate the reasoning giving rise to that determination:

"The employer submitted in this case that he can contest the question of whether incapacity for work actually exists in the case of back dated medical certificates. I think that is wrong because I think that the words 'incapacity for work actually exists' mean that it must appear that there is incapacity for work and it be claimed by the worker that it does exist. In this case that is exactly what the worker has done by claiming partial incapacity. The question is whether Section 86(1)(a) contemplates partial incapacity existing when it speaks of the worker returning to work following a payment in respect of total incapacity. The worker is not in receipt of weekly payments in respect of partial incapacity and therefore the provisions of Section 86(1)(b) cannot apply.

Atkinson v Nipper Cleaning Services Pty (t/a Burrells Hi Tech Cleaning Service) A105/1993 is authority for the proposition that the phrase 'return to work' is not confined to situations where the worker returns to work with the employer liable to pay compensation. In other words a worker can return to work with another employer. However in this case the employer only showed a return to work in respect of a portion of the worker's employment. Termination was not therefore justified. There could however be a reduction in those circumstances. It is interesting to note that Cox J thought that the South Australian and West Australian cases dealing with return to work were not applicable because of the very narrow construction placed on that phrase in their legislation. He said this at page 5:-

'There seems to me to be no reason why an employer should be expected to continue to pay weekly payments on the basis of total incapacity to a worker who is in fact working for another employer and who may even be earning as much or more in the same class of work as that in which he sustained his injury.'

However it is also clear that that case is not authority for the proposition that there is no liability to pay compensation on the basis that there is no liability to make the weekly payments. The employer seeks to terminate by not making a weekly payment to the worker and clearly where the worker has returned to work with a different employer and has a continuing partial incapacity, that would enable the employer to lawfully reduce the weekly payment being made to the worker but not to terminate it as it has attempted to do in this case. There is evidence of actual incapacity for work and its existence is supported by a medical certificate in the appropriate form. According to the authority of Muir & Dance (supra) an entitlement to weekly payments arises. In those circumstances there is a lawful reduction which does not necessitate the use of Section 88 or Section 81A(5) and it seems to me that an order in the terms sought by the worker is irresistible."

With all due respect, the Tribunal permitted a caravan of camels to pass, at the same time, through the proverbial statutory needle. The argument of the respondent proceeds on the basis that the original claim is the only claim which may be made under the Act. Therefore, the further documentation and certification simply amount to quantification. Such cannot be the case. An employer is required to respond to each claim as and when made. If he does not respond, then he is deemed by statute (or at least precluded from objecting) to have accepted the claim. A claim may be for past expenses or loss of earnings because, as of the date of the making of the claim, such was the detriment already suffered or the loss of which should be compensated. But acceptance of an earlier claim does not preclude an employer from challenging or declining to pay a subsequent one. In the circumstances of this case, there were no payments either outstanding or claimed which the appellant could have terminated by means of the Act, s86, and it was under no requirement to make payment until the service of a claim. In this case, the appellant sought referral in accordance with the Act, s81A(5). He did so following a claim for compensation for the payment of past wages. He could not stop payment of monies as envisaged by s81A since he was not paying such monies. The argument of the respondent depends on a particular view being taken of the decision of Underwood J in Muir v Dance. An analysis of that decision does not warrant the determination reached by the Tribunal.

Whilst the original notice and claim established entitlement for future payment for claims of recurrence of injury (Harris v TSS Pty Ltd and Sun Alliance Insurance Group Limited A46/1992, Chorley v Hazel Pty Ltd Mercantile Mutual Insurance Ltd A17/1993), the requirement imposed by s81(i) to make payment had been met by the making of such payments claimed by the respondent. The appellant had been entitled to terminate payments by virtue of s86(1)(a). On the evidence before the Tribunal, it was safe to conclude that, although the matter had not been settled by agreement (Chorley v Hazel (supra) and Brambles Holdings Ltd t/as Brambles Shipping v Pincott A30/1994, Underwood J at 4), the assertion of a right to the receipt of further weekly payments was a matter affording jurisdiction. In such a case the employer is entitled to dispute such further entitlement. The problem is occasioned by the definition of the word 'claim' stated in the Act, s3, namely:

"'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".

Thereafter the legislation makes use of the word "claim" in a number of different contexts. It refers to the making of a claim in the sense of original notification of injury and entitlement, and at other times to encompass a subsequent reference of a matter arising out of that original assertion to entitlement. In the circumstances of this case, the claim made was incidental to the original assertion, namely that the respondent was entitled to resumption of payment of at least part of his former weekly entitlement. Failure to contest the original claim does not preclude an employer from disputing a subsequent assertion of entitlement where there has been a lawful termination of such original entitlement. The question involves a two-stage procedure (Jones v Jones A78/1996, Burgess v Umina Park Home for the Aged and Another (1993) 2 Tas R 246, Guthrie Pty Ltd v Sheriff (1993 - [1994] TASSC 25; 1994) 3 Tas R 399). In this case, the preliminary question was whether there had been a lawful termination of payment in accordance with the Act, s86(1)(a). If the answer was in the negative, then the Tribunal was entitled to order the continuation of payments provided that the appropriate certificates existed. But if the answer was in the affirmative, then the "claim" or matter being referred by the respondent was in respect of an entitlement to the resumption of payments. An employer who has not disputed the original liability is entitled to contest the validity of the subsequent or incidental matter. In Muir v Dance (supra) the reference made pursuant to the Act, s81A(5) had been determined in favour of the employer. The sole issue considered by Underwood J concerned the validity of the certificates. His Honour held them to be valid. In my view, there was nothing in that decision which supports the proposition that an employer is not entitled to dispute a subsequent or incidental matter. The right of disputation extends to a "claim" or assertion that the right to resumption of payment extends to a period prior to the making of the "claim". The grounds comprised in the notice of appeal claim:

"1 The Tribunal erred in finding that an entitlement to payment for incapacity was not dependent on the actual existence of incapacity; and/or

2 The Tribunal erred in finding that claimed incapacity was identical to actual incapacity; and/or

3 The Tribunal erred in finding that there was actual incapacity for work on the part of the Respondent; and/or

4 The Tribunal erred in finding that the only sum to be set against the Respondent's normal weekly earning as an ambulance driver was the amount the Respondent has been and is earning as a sales representative."

The Tribunal regarded itself as being precluded from determining those questions because, the employer, having failed to dispute the original claim, was bound by the opinion expressed in the medical certificate. In my opinion, such an approach was erroneous.

The determination made by the Tribunal ought to be set aside. The matter referred to the Tribunal by the respondent should be determined in accordance with law.