Judgment Number: [2003] TASSC 125

1 The appellant ("the worker") appeals a determination or ruling of the Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") established by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s16, whereby on the facts before him he found, as a matter of law, no obligation on the respondent ("the employer") to have commenced weekly payments of compensation to the worker, nor any basis for the Tribunal to order weekly payments to be made to him.

2 The worker made application for a determination as to his entitlement to the payment of weekly payments in respect of an injury to both wrists that occurred on or about 5 June 1998, such claim for compensation being in the form of a medical certificate provided by the worker dated 17 March 2003. The following facts were agreed:

"* The worker made a claim for compensation dated 16 June 1998 supported by a medical certificate with a diagnosis of "soft tissue stress to both wrists", such injury alleged to have occurred out of and in the course of the worker's employment.

* By order of the Tribunal dated 28 September 2001 the rate of weekly payments to be paid by the employer to the worker was reduced to $460.00.

* The worker served on the employer a worker's compensation medical certificate dated 17 March 2003 on a date somewhere between 18 and 25 March 2003.

* Prior to the aforementioned medical certificate the previous medical certificate served by the worker on the employer was a certificate dated 2 September 2002.

* The employer disputed liability in respect to the workers compensation medical certificate dated 17 March 2003 and referred that dispute to the Tribunal as provided by s81A of the Act.

* This referral was dismissed by the Tribunal on the basis that there was no jurisdiction to entertain the referral as apparently the employer had failed to comply with the time limit established by s81A.

* The certificate of 2 September 2002 certified as to an ongoing incapacity up until 31 October 2002, however the employer continued to make payments of compensation in the absence of further certification.

* When the next medical certificate, ie that dated 17 March 2003, was delivered the employer ceased paying compensation and thereupon made the s81A referral.

* Subsequent to the dismissal of that referral, weekly payments have not been recommenced by the employer.

* There was a gap of almost five months between the expiration of the certificate dated 2 September 2002 and the receipt of the subject certificate, dated 17 March 2003.

* The subject medical certificate of 17 March 2003 is a certificate in relation to the bilateral wrist injury which was the subject of the original claim for compensation dated 16 June 1998, for which liability was initially accepted by the employer."

3 In G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 ("Barber v Ryan"), I held that given the circumstances of that case, the presentation of a fresh medical certificate of incapacity after a break in the continuity of certification to that effect amounted to a further claim for workers compensation within the meaning of the Act, ss81 ff, as it then stood. The correctness of this proposition was accepted by the Full Court in State of Tasmania v Parsons [2002] TASSC 59; (2002) 11 Tas R 26. In Pataki v University of Tasmania [2000] TASSC 144; (2000) 9 Tas R 397 at 400, I pointed out that Barber v Ryan:

"... is not authority for the proposition that wherever there is a gap in the continuity of medical certificates of incapacity, presentation of a further certificate constitutes the making of a fresh claim attracting the provisions of s81 ff. It asserts that a claim for compensation to which those provisions apply is not confined to the initial claim."

On the agreed facts, had the legislation not been amended, the worker's claim would have attracted those provisions and the failure of the employer to properly utilise s81A and dispute liability within the time allowed by that section would have resulted in its being taken to have accepted liability in respect of that claim in accordance with s81AB.

4 The Act, however, was amended in two important ways by Act No 99 of 2000 ("the amending Act") which took effect on 1 July 2001. First, s80A was inserted. This provided:

"80A - For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer."

Second, s69(13) was inserted to the following effect:

"(13) If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."

5 Section 80A, on its face, clearly excludes a claim such as the present from the operation of some parts of PtVII, Div1 (ss80A - 90). I say "some parts" because the section does not say that the provisions of Div1 do not apply to such claims, but merely that those claims are not "claims for compensation" for the purposes of the Division. Hence, those provisions which speak of "claims for compensation" have no application, but that is not to say that other provisions which do not use that expression have no application. For example, s86 makes no reference to a claim for compensation and provides that except in pursuance of a determination made by the Tribunal under s88(2), an employer may terminate or reduce a weekly payment made to a worker only in certain circumstances, including, in the case of total incapacity, where the worker has returned to work. Likewise, s88 provides for the review of weekly payments and is not confined to a review of weekly payments in respect of claims of compensation within the meaning of, or for the purposes of, Div1.

6 On the agreed facts, the Chief Commissioner ruled that the medical certificate dated 17 March 2003 was a claim for compensation, that it was a claim in respect of an injury for which the worker had previously made a claim against the employer, that the obligation to commence weekly payments imposed by the Act, s81(1), did not apply to the present claim and that s81AB did not apply either. He concluded:

"I do not consider, on the basis of the submissions made to me, that in the circumstances of this case there was an obligation on the employer to have commenced paying weekly compensation upon receipt of the subject medical certificate, nor is there any basis, as things stand at this stage, for the Tribunal to order that weekly payments be made.

This application will be relisted for further hearing upon its merits."

7 Counsel for the worker argues that the insertion of s69(13), where the employer purports to avail itself of that subsection and elects to treat the medical certificate as a claim for compensation to which s81A applies, brings into operation the other provisions of PtVII, Div1, such as s81(1) which imposes on the employer an obligation to commence payments of weekly compensation, and s81AB, the deeming of acceptance of liability where "the employer does not, in accordance with s81A dispute liability". The worker's first two grounds of appeal are:

"1 That the learned Chief Commissioner erred in law in determining that Section 81(1) of the Workers Rehabilitation and Compensation Act 1988 did not apply to a reference pursuant to Section 69 (13).

2 That the learned Chief Commissioner erred in law in determining that Section 81AB of the Workers Rehabilitation and Compensation Act 1988 did not apply to a reference pursuant to Section 69(13)."

I consider both grounds misconceived. In the event that a reference is made by an employer pursuant to s69(13) in respect of weekly compensation, the outcome will usually be an order that the employer make weekly payments from such date as the Tribunal determines or, if the Tribunal considers that a genuine dispute exists, that compensation by way of weekly payments is not to be paid and the question of liability will thereafter be determined. There is no need to refer back to s81 for authority to order payment of weekly compensation where there is no finding of a genuine dispute. That section only applies to claims other than a previous claim against the same or another employer in respect of the same injury (s80A). If the employer does not avail itself of s69(13) (or, as in this case, attempts to do so but fails to do so in time with the consequence that its referral is struck out without further order in respect of payments), the worker has no need to rely on PtVII, Div1 for his entitlement to be paid compensation. Liability has already been established, whether, by way of s81AB or otherwise, such as previous adjudication. On a reference by the worker under s42 and proof of the medical certificate, the Tribunal should order resumption of payments, for liability is no longer an issue unless the employer can show some justification, eg, lawful termination pursuant to s86 or cessation under s87, or some other justification.

8 Similarly, the Chief Commissioner was not in error in concluding that s81AB did not apply. Clearly it did not because the claim in question was not one for the purposes of PtVII, Div1. Again, however, recourse by the worker to that section was unnecessary in the circumstances, for liability had previously been established and no justification was apparent.

9 In Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108, a decision published shortly after the delivery of the Chief Commissioner's ruling, Crawford J held that claims by way of medical certificates based on an injury for which the worker had previously made a claim for compensation were not claims as defined in s80A for the purposes of PtVII, Div1, nor was the employer "to be taken, by virtue of s81AB to have accepted liability in respect of the claims, because they were not claims to which the section applied" (at par21). The Tribunal, in those circumstances, had ruled that, absent the deeming provision of s81AB, the employer was able to dispute the claims on the worker's reference to the Tribunal. In that case, however, Crawford J pointed out that some argument had been addressed to the effect that the employer's liability having been established some years previously and payments having been made, the cessation of medical certificates had left the employer's obligation to make weekly payments of compensation in abeyance and that upon presentation of further certificates after a gap in time, s69(1) came into operation and the employer was obliged to resume the making of weekly payments in accordance with those certificates. He referred to Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240. His Honour was unable to resolve the issue because the agreed facts before the Tribunal and before him were insufficient to show whether or not payments had been validly terminated under s86 or otherwise, there being a suggestion that the worker had at some stage returned to work.

10 The remaining grounds of appeal are expressed as follows:

"3 That the learned Chief Commissioner erred in law in failing to find that there was an obligation on the employer to have commenced paying weekly payments of compensation on receipt of the subject medical certificate.

4 That the learned Chief Commissioner erred in law in failing to order that the employer pay weekly payments of workers compensation to the worker."

11 In the present case, there is no suggestion of any basis for valid termination or cessation of payments. The employer's s81A reference, which was dismissed because it was lodged out of time, was in evidence and it purported to dispute liability, essentially on the basis that the condition did not arise out of and in the course of the worker's employment. It raised no matter of justification for a termination of the weekly payments. The agreed facts show liability was accepted in 1998 and weekly compensation paid pursuant to medical certificates covering the period to 31 October 2002. Thereafter there was a gap in certification until March 2003, although payments were, curiously enough, continued until receipt of the March certificate, whereupon the employer ceased to make payments. The injury is the same as that the subject of the 1998 claim. In those circumstances, the obligation to pay compensation which had been in abeyance since 1 November 2002, revived pursuant to s69(1) and there was no reason why the Chief Commissioner should not have ordered a resumption of payment.

12 In my view, grounds 3 and 4 have been made out. I order that the employer pay weekly compensation from the date upon which it ceased to pay the same until the expiration of any period of incapacity the subject of a certificate of the kind referred to in the Act, s69(1). The order relisting the matter for further hearing upon its merits is quashed.