That the employer pay to the worker the sum of $95,980.50 gross by way of weekly payments of compensation covering the period 23 August 2023 to 6 November 2024

Workers compensation - whether claim for compensation made - date of claim - extent to which employer liable for weekly payments

Workers Rehabilitation and Compensation Act 1988; ss 34, 35, 42, 81, 81A, 81AB;

Corporations Act 2001 (Cth_);_ s 146.

G v Weller Rail & Mechanical Services Pty Ltd [2008] TASWRCT 2;

G v Care Park Pty Ltd [2013] TASWRCT 30;

H v Hobart Art Hotel [2017] TASWRCT 38.

The decision has been anonymised for the purpose of publication.

1. This decision involves questions about a purported claim for workers compensation.
2. On 12 March 2025, the worker filed in the Tribunal a referral (the referral) under s 42 of the Workers Rehabilitation and Compensation Act 1988 (the Act), seeking a determination of the worker's entitlement to payments of compensation.
3. It is agreed between the parties that on 19 November 2024 the worker, through his solicitors, sent two workers compensation claim forms and two workers compensation medical certificates addressed to his employer at a particular address in Tasmania.
4. There is a dispute between the parties about whether the worker made a claim for compensation against his employer at that time. If he did not, there is a further dispute about whether a claim for workers compensation was made when the Tribunal, on 8 May 2025, forwarded to the employer a copy of the referral together with a notice of hearing for a directions hearing in respect of the referral. The employer says no claim for compensation has been made at any time.
5. If the worker has made a claim for compensation (whether on or about 20 November 2024, or on 8 May 2025), and the employer has been taken to have accepted liability for the claim in accordance with s 81AB of the Act, a further issue arises about the date from which the employer is required to pay weekly payments of compensation to the worker.

1. A worker makes a claim for compensation under the Act by delivering to his or her employer a claim form and a workers compensation medical certificate. Section 34 of the Act relevantly provides:

(1) Subject to subsection (2A) , a claim for compensation is to- > > (a) be in a form approved by the Board; > > (b) be accompanied by a certificate in a form approved by the Board signed by a medical practitioner or an accredited person; and > > (c) be given to- > > (i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or > > (ii) a person designated for the purpose by the employer.

2. Section 35 of the Act prescribes how a claim may be served on an employer:

(1) A claim for compensation may be given - > > (a) to the employer of a worker or, if there is more than one employer, to one of the employers of a worker by - > > (i) delivering it personally to the employer or one of the employers; or > > (ii) by placing it in a properly addressed envelope and sending it by post to the employer, or one of the employers, at the employer's usual or last-known place of business or residence; and > > (b) to the person designated for the purpose by the employer, by delivering it personally to that person.

(1) Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the worker's first pay day after receipt of that claim - > > (a) is not later than 14 days after the receipt of that claim, the employer must - > > (i) if it is reasonably practicable to do so, commence making weekly payments to the worker on the first pay day; or > > (ii) in any other case, commence making weekly payments to the worker not later than 14 days after receipt by the employer of the worker's claim for compensation; or > > (b) is later than 14 days after the receipt of that claim, the employer must commence making weekly payments of compensation on that pay day. > > (2) An employer who fails to comply with subsection (1) is guilty of an offence. > > Penalty: Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues. > > (3) Weekly payments payable under this section are payable from - > > (a) the date of the incapacity; or > > (b) 14 days before the date on which the claim for compensation was given to the employer under section 34 - > > whichever is the later.

2. Section 81A of the Act provides the mechanism by which an employer may dispute foundational liability in respect of the claim, and s 81AB provides:

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

1. The following matters are agreed between the parties:

(i) At all material times the employer was a company registered in Australia and trading as MD Engineering Solutions.

(ii) The directors of M and D Miscevic Pty Ltd were Miroslav Miscevic and Daria Djekanovic (also known as Daria Miscevic).

(iii) As of 1 September 2021, the worker was employed by the employer.

(iv) On 19 November 2024, the worker via his solicitors Murdoch Clarke sent by pre-paid Australia Post postage to "M and D Miscevic Pty Ltd t/as MD Engineering Solutions" at 302 Nelson Road, Mount Nelson in Tasmania, documents, namely:

(b) Certificate of Incapacity of Dr Jane Zochling dated 6 November 2024;

(d) Certificate from Dr Jane Zochling dated 6 November 2024.

(v) As of 19 November 2024, Miroslav Miscevic and Daria Djekanovic were the Registered Proprietors of 302 Nelson Road, Mount Nelson in Tasmania, but did not live there.

(vi) The Worker says he has not received any income from employment since 18 August 2023 and for the purposes of this hearing the employer does not contend otherwise and accepts that.

(vii) On 8 May 2025, the employer was sent by email from TASCAT the Worker's s 42 reference dated 11 March 2025 and attached documents, being :

(a) Claim Form dated 25 July 2024;

(b) Certificate of Incapacity of Dr Jane Zochling dated 6 November 2024;

(c) Claim Form dated 25 July 2024;

(d) Certificate from Dr Jane Zochling dated 6 November 2024;

(e) Affidavit of Andrew Ivan Gaggin sworn 5 March 2025;

(f) Statutory Declaration of Worker declared on 10 March 2025.

1. When the matter was listed for hearing the parties jointly filed a hearing book containing a number of documents that were received by the Tribunal:

(i) The worker's s 42 referral dated 11 March 2025 with Annexures:

(a) claim form completed 25 July 2024

(b) Workers compensation subsequent certificate of capacity dated 6 November 2024;

(c) Workers compensation claim form dated 25 July 2024;

(d) Subsequent workers compensation certificate of capacity dated 6 November 2024;

(e) Affidavit of the worker's solicitor, Mr Gaggin, sworn 5 March 2025 attaching results of ASIC searches;

(f) Statutory declaration of the worker declared 10 March 2025.

(ii) Letter from the worker's solicitors, Murdoch Clarke to the employer's solicitors, Page Seager dated 21 May 2025.

(iii) Letter from Murdoch Clarke to Page Seager dated 22 May 2025.

(iv) Letter from Page Seager to Murdoch Clarke dated 4 June 2025.

(v) Letter from Murdoch Clarke to Page Seager dated 11 June 2025.

(vi) Letter from Page Seager to the Tribunal dated 8 July 2025.

(vii) Letter from Murdoch Clarke to Page Seager dated 10 July 2025.

(viii) Second letter from Murdoch Clarke to Page Seager dated 10 July 2025 enclosing title search.

(ix) ASIC change to company details dated 15 February 2021.

(x) Statement of Miroslav Miscevic, Managing Director of the employer, dated 8 July 2025.

1. As can be seen, the worker completed two workers compensation claim forms on 25 July 2024.
2. In one claim form, the worker asserts that he suffered a herniated disc and a fractured spine on 1 September 2021.
3. In the other claim form, the worker does not identify a date of injury. He says:

My employment at MD Engineering exacerbated my arthritic condition and caused lifelong damage.

4. The two workers compensation certificates of capacity dated 6 November 2024 are both expressed to be a subsequent certificates. They both note the date of injury as 1 September 2021 and certify the worker to have capacity for suitable alternative work from 18 August 2023 until 6 November 2024. In one certificate, Dr Zochling provides a diagnosis:

Lumbar disc prolapse, Fracture through Scheurmanns lesion in thoracic spine

In the other certificate, Dr Zochling provides a diagnosis

Exacerbation of spinal arthritis. Progressive kyphosis since injury. Exacerbation of bilateral hip osteoarthritis

1. The worker, in his statutory declaration, says that he injured his back whilst working for the employer on 1 September 2021. He continued working for the employer. He says that as a result of the injury to his back, he ceased to be able to work on 18 August 2023. He sets out his net fortnightly income between about 23 February 2023 and 10 August 2023, makes a calculation about his before-tax income for that period, and calculates the gross incomes in each financial year covered by the period. The worker calculates that for the 24 weeks between 23 February 2023 and 10 August 2023, he earned a total of $36,564.22 gross from his employment with the employer, or $1,523.50 per week. It is this amount the worker claims as his average weekly earnings for the period 23 August 2023 to 6 November 2024.
2. Mr Gaggin's affidavit refers to ASIC searches that he caused to be undertaken, and annexes the results of those searches. On 11 November 2024, a search of the ASIC register for the business name "MD Engineering Solutions" disclosed:
   • the proprietor of that business name to be "M AND D MISCEVIC PTY LTD [ABN provided].
   • the address for service of documents was given as 302 Nelson Road Mt Nelson TAS 7007.
   • The principal place of business was noted as 189 Elizabeth Street Hobart TAS 7000

A company search of 'M AND D MISCEVIC PTY LTD' on 12 November 2024 disclosed:

• The company's registered office was located in New Norfolk in Tasmania
• The Registered address of the company was 51 High Street, NEW NORFOLK TAS 7140
• The Principal Place of Business address of the company was 302 Nelson Road, MT NELSON TAS 7007
• The address given for both the Directors of the company was 302 Nelson Road MT NELSON TAS 7007

1. The exchange of correspondence between Murdoch Clarke and Page Seager set out the positions taken by each of the parties, and are reflected in the submissions referred to below. The same applies to the correspondence from Page Seager to the Tribunal dated 8 June 2025.
2. The ASIC Change to Company Details form is an application made by the company M and D Miscevic Pty Ltd to change the registered office of the company to 51 High Street in New Norfolk in Tasmania from 12 February 2021, and a copy of the minutes of a meeting of the directors of the company to do so.
3. The statement of evidence of Mr Miscevic, Managing Director of MD Engineering solutions sets out the employer's position in relation to a number of matters, including:
   • He runs the business with his wife, and they live in Queensland.
   • The first they knew about the worker's claim for compensation was on 8 May 2025 when they received an email from the Tribunal attaching a notice of hearing and a copy of the worker's s 42 referral.
   • They had no knowledge of the worker having suffered injury at work as claimed. After the date of alleged injury, the worker continued to work as normal. If the worker had notified them of an injury, they would have taken action including sending him to a doctor, and notifying their workers compensation insurer. They have been prejudiced by the loss of the opportunity to investigate the circumstances surrounding the alleged injury, and by the lack of opportunity to manage the claim and the worker's injury.
   • They have never received the documents that the worker's solicitor posted to the address in Mt Nelson, that was their former residential address.
   • The worker knew the Mt Nelson address was their former residential address. The worker knew they had moved to Queensland.
   • The New Norfolk address is the address of their accountant at the time, so the accountant could receive any ATO or company documents while they were busy working on the business in Queensland.
   • The address of their workshop and office is 3/14A Main Road, Moonah in Tasmania. This is where the worker worked and he was aware there was a mailbox present on site and had helped to collect mail from that site.

The parties' submissions about a claim in November 2024

1. The worker says, on the basis of the two claim forms and two workers compensation medical certificates, that he suffered either a discrete injury on 1 September 2021 which caused incapacity on 18 August 2023, or he suffered an exacerbation of an underlying condition on 1 September 2021 which caused him to become incapacitated on 18 August 2023.
2. The worker says that by posting the claim documents to the address 302 Nelson Road in Mount Nelson on 19 November 2024, the claim was given to the employer in accordance with s 35 of the Act.
3. The worker says it is a requirement on corporations to ensure details appearing on the ASIC register are accurate, and refers to s 146 of the Corporations Act 2001 (Cth) (the Corporations Act). The worker says he was entitled to rely on the register maintained by ASIC.
4. The employer says:
   • The uncontradicted evidence of Mr Miscevic is at the address the documents were sent to on 19 November 2024 was not the usual or last known place of business or residence.
   • The change to the company details dated 15 February 2021 shows the employer had done all it could as that date to change the company address from the Mount Nelson address to the New Norfolk address.
   • The extract from the ASIC register showed the Mount Nelson address was a 'historical' address, and ceased to be the relevant address on 21 February 2021.
5. On that basis, the employer says the worker has not complied with the requirements of s 35 of the Act, in that the claim documentation was not sent to the 'usual or last known' place of business or residence of the employer.

1. I determine that a claim for compensation was made by the worker on or about 20 November 2024, after the worker's solicitor sent the claim forms and the workers compensation medical certificates by registered post to the employer at 302 Nelson Road, Mr Nelson in Tasmania.
2. I accept the submission that the worker was entitled to rely upon the register of ASIC which showed 302 Nelson Road, Mount Nelson to be the address for service of documents of the trading name MD Engineering, and the principal place of business of M & D Miscevic Pty Ltd, and the addresses of the directors of M & D Miscevic Pty Ltd.
3. This is particularly so in circumstances where the worker had apparently not worked for the employer for approximately fourteen months prior to the claim being made.
4. I do not accept the submission that the employer, in February 2021 had "done all it could" to change the company address from the Mount Nelson address to the New Norfolk address. Consideration of the Change to Company Details Form relied upon by the employer discloses that the form was only completed for the purpose of changing the address of the registered office. The same form gives a company options to also change the company's principal place of business address and the company office holders' residential address - neither of which were apparently attended to. The Mount Nelson address was only a 'historical address' after 21 February 2021 for the company's registered office. It continued to be the current address for the principal place of business and the company directors after that date.
5. Because I have determined the claim was made on or about 20 November 2024, I do not need to make any further determination about the alternative submission that the claim was made on 8 May 2025.

1. The worker says that if the claim was made in November 2024, the employer has not disputed liability under s 81A of the Act, and is therefore, by virtue of s 81AB of the Act deemed to have accepted liability in respect of the claim.
2. What flows from that, the worker says, is that the employer is liable to pay weekly payments of compensation for the period of partial incapacity that is covered by the certificates dated 6 November 2024 - that is, from 23 August 2023 until 6 November 2024.
3. In respect of the quantum of those weekly payments, the worker points to the evidence in his statutory declaration about his earnings in the period from 20 February 2023 to 10 August 2023, and his calculations as to his average weekly earnings. For the 63 week period from 23 August 2023 to 6 November 2024 the worker says the employer is liable to pay him weekly payments of compensation in the sum of $1523.50 per week, totalling $95,980.50 (gross).
4. The worker relies on G v Weller Rail & Mechanical Services Pty Ltd [2008] TASWRCT 2 (Weller), G v Care Park Pty Ltd [2013] TASWRCT 30 (Care Park) and H v Hobart Art Hotel [2017] TASWRCT 38 (Hobart Art Hotel).
5. The employer concedes that if a claim for compensation was made on or about 20 November 2024, s 81AB of the Act applies, and the employer is deemed to have accepted liability for the worker's claim.
6. However, the employer says that it would be unjust for there to be a determination that requires it to pay weekly payments for the entire period covered by the certification, and that it would be a just outcome for it to only be required to pay weekly payments for periods of incapacity within the fourteen days before the claim was made. The employer refers to Chief Commissioner Carey's observation in Weller at [8], referring to s 81(3) of the Act:

I agree that the liability of the employer to make any weekly payments in this case commences on 2 January, being 14 days prior to the date upon which the employer received the claim for compensation, which was later than the alleged date of incapacity.

7. The employer also says that s81AB of the Act should not be permitted to operate in a manner that could create significant monetary liability retrospectively where employers would have no remedial avenues under s81A, s 86 or s 88.

1. In Macquarie Art Hotel, a worker's claim for compensation had not been disputed under s 81A of the Act. Although the purported employer had been represented in a preliminary teleconference as part of the Tribunal's conciliation process, and asserted that there was a dispute as to whether the worker had, in fact been employed by it, the purported employer failed to appear when the worker's s 42 referral (seeking orders that compensation be paid) was listed for hearing.
2. Having heard the worker's evidence, Chief Commissioner Webster noted that where the employer had failed to dispute liability for the claim under s 81A, because of s 81AB of the Act, the worker was taken to have established the elements set out in s 25 of the Act. On that basis, there was no dispute about liability, and the only outstanding issue was the quantum of payments.
3. In Care Park, the worker made a claim for compensation on 2 October 2012 in relation to an injury that was said to have occurred on 2 April 2012. Workers compensation certificates were delivered that certified the worker to be incapacitated for work, firstly from 2 April 2012 to 6 April 2012, and secondly from 6 April 2012 to 28 June 2013. The employer agreed that the worker had been incapacitated for work from 2 April 2012 to 18 September 2012. The employer also agreed that it was liable to pay compensation to the worker under the Act, but said that the effect of s 81(3) was that it was only liable to pay weekly payments from 18 September 2012 - that is, from a date 14 days prior to the date the claim was received by the employer.
4. The worker said that s 81(3) of the Act only applies to an employer's 'without prejudice' obligations in relation to weekly payments under s 81, prior to any determination about liability. Chief Commissioner Carey agreed. He held that once an employer's liability to pay compensation in accordance with s 25 of the Act has been established, weekly payments of compensation are payable by the employer for the period of incapacity as supported by approved medical certificates[1].
5. In Weller, the worker gave notice of injury on 28 November 2008 to his employer and delivered a workers compensation medical certificate that covered a period of incapacity of 2 days. He then delivered some non-workers compensation certificates from 2 to 7 December 2008, and returned to work undertaking normal duties on 11 and 12 December 2008. He did not work with the employer after that, and the employer believed he had either resigned or abandoned his employment. On 16 January 2009, the worker delivered to the employer a workers compensation claim form, and a workers compensation medical certificate that certified the worker to be fit for modified duties from 17 December 2008 to 17 January 2009.
6. The employer did not commence making weekly payments, and the worker referred his claim to the Tribunal seeking interim orders under s 60A of the Act for weekly payments to commence. An issue arose about the quantum of weekly payments to be made where the worker was certified only partially incapacitated for work
7. Chief Commissioner Carey ultimately determined that the certification that the worker was partially incapacitated did not affect the employer's liability to pay weekly payments, and that in the absence of any evidence of actual earnings by the worker, his entitlement would be treated the same as if he had been certified wholly incapacitated.
8. It should be noted that in Weller, although Chief Commissioner Carey did observe at [8] that the liability for the employer to make weekly payments commenced fourteen days prior to receipt of the claim, in the particular circumstances of that case, the worker's s 60A referral was heard whilst the period within which the employer was able to dispute the claim under s 81A was still running.

1. I have determined the worker made a claim for compensation on, or about 20 November 2024.
2. The employer did not dispute liability for the claim pursuant to s81A of the Act. This is because, as the employer has said, it knew nothing of the claim until it received notice of hearing from the Tribunal on 8 May 2025.
3. Th effect of s 81AB of the Act, if that the employer is deemed to have accepted the claim.
4. In the light of Macquarie Art Hotel, Care Park and Weller:
   • the worker is taken to have established the elements set out in s 25 of the Act, in that, on 1 September 2021 he has either suffered an injury which is not a disease which arose out of or in the course of his employment, or an injury which is a disease, to which his employment contributed to a substantial degree within the meaning of s 3(2A) of the Act.
   • Because the employer's liability to pay compensation in accordance with s 25 has been established, weekly payments of compensation are payable by the employer for the period of incapacity supported by the workers compensation certificates of capacity - in this case from 23 August 2023 until 6 November 2024.
   • In the absence of any actual earnings by the worker, his entitlement to compensation is to be treated the same as if he had been certified wholly incapacitated.
5. The only evidence that is before me in relation to the worker's weekly rate of compensation is contained in the worker's statutory declaration, and his calculation about his average weekly earnings. His evidence is that he ceased work on 23 August 2023 and has not worked since.
6. The employer has submitted that s 81AB should not be permitted to operate in such a way as to impose significant retrospective liability on an employer. There undoubtedly will be a significant liability on the employer, but it is a liability that could potentially have been mitigated if the employer had complied with its obligations under the _Corporations Ac_t to ensure the ASIC register was accurately maintained.
7. I determine that in respect of worker's claim for compensation that was made on, or about 20 November 2024, the employer's liability to pay weekly payments of compensation to the worker covers the period 23 August 2023 to 6 November 2024 at the rate of $1 532.50 per week gross. I calculate the total of 63 weeks x the weekly rate to be $95 980.50
8. I order that the employer pay to the worker the sum of $95 980.50 gross by way of weekly payments of compensation covering the period 23 August 2023 to 6 November 2024.