Alasi-Jones v State of Tasmania
[2021] TASFC 13
•27 October 2021
[2021] TASFC 13
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Alasi-Jones v State of Tasmania [2021] TASFC 13 |
| PARTIES: | ALASI-JONES, Shane |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | FCA 882/2021 |
| DECISION | |
| APPEALED FROM: | The State of Tasmania (Department of Health) v A |
| [2021] TASWRCT 13 | |
| DELIVERED ON: | 27 October 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 30 September 2021 |
| JUDGMENT OF: | Blow CJ, Estcourt and Brett JJ |
| CATCHWORDS: |
Workers' Compensation – Assessment and amount of compensation – Discontinuation of payments – Procedural matters – Generally – Tasmania – Employer asserting incapacity ceased within 84 days after claim for compensation – Appropriate procedure.
Workers Rehabilitation and Compensation Act 1988 (Tas), s 81A.
Federal Hotels Ltd v Webb [2013] TASSC 36, 22 Tas R 283, explained.
Aust Dig Workers Compensation [429]
REPRESENTATION:
Counsel:
Appellant: B Hilliard Respondent: O Robinson
Solicitors:
Appellant: Hall Payne Lawyers Respondent: Solicitor-General
| Judgment Number: | [2021] TASFC 13 |
| Number of paragraphs: | 51 |
Serial No 13/2021
File No FCA 882/2021
SHANE ALASI-JONES v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ ESTCOURT J BRETT J 27 October 2021 |
| Orders of the Court: |
1 Appeal allowed.
2 Determination of the Workers Rehabilitation and Compensation Tribunal dated 31 March 2021 set aside.
3 Referral dated 12 March 2021 dismissed.
Serial No 13/2021
File No FCA 882/2021
SHANE ALASI-JONES v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ 27 October 2021 |
1 This is an appeal from the determination of the Workers Rehabilitation and Compensation Tribunal. It has been referred to the Full Court pursuant to r 703(4) of the Supreme Court Rules 2000 because it concerns an important question of law in relation to s 81A of the Workers Rehabilitation and Compensation Act 1988 ("the Act").
2 The appellant is employed by the State as a hospital aide. He made a claim for workers compensation on 22 December 2020 on the basis of stress. He was certified as unfit for work from 14 December 2020. The State accepts that he was initially totally incapacitated for work. During February 2021 he was assessed by a consultant psychiatrist, Dr Peter Miller, at the request of the State. Dr Miller opined that he had been totally incapacitated for work until 18 January 2021 and then partially incapacitated for a limited time, but that he had wholly or substantially recovered from the effects of any work injury that he had suffered. The appellant contended that he had not wholly or substantially recovered, and that he was entitled to continuing weekly payments of compensation.
3 On 12 March 2021 the State's insurer instituted proceedings in the tribunal, relying on s 81A of the Act. The Chief Commissioner of the tribunal, Ms A Clues, conducted a hearing, and on 31 March 2021 made an order, relying on s 81A(3)(c) of the Act, that "a reasonably arguable case exists with regard to the employer's liability to pay compensation by way of weekly payments and that compensation by way of weekly payments is not to be paid to the worker by the employer": The State of Tasmania (Department of Health) v A [2021] TASWRCT 13. She also made an order for the payment of expenses by the employer pursuant to s 81A(3)(b). The State conceded its liability for the payment of such expenses.
4 Section 81A of the Act, when it applies, enables an employer who is disputing liability to make payments of compensation to seek a speedy interim determination as to whether such payments are to be made or not. The scheme created by the Act can be summarised as follows:
As a general rule, if in any employment a worker (a) suffers an injury, not being a disease, arising out of or in the course of his or her employment, or (b) suffers an injury which is a disease, and to which his or her employment contributed to a substantial degree, then the worker's employer is liable to pay compensation in accordance with the Act: s 25(1).
As a general rule, when a worker makes an initial claim for compensation, the employer must
commence making weekly payments: s 81.
If the employer disputes liability to pay compensation by way of weekly payments, the employer may, within 84 days of receiving the claim for compensation, serve the worker with written notice of the dispute, inform the worker of the reasons for disputing liability, and refer the matter to the tribunal: s 81A(1).
Under s 81A(3)(c), "if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments", ie if the tribunal considers that it is reasonably arguable that the employer is not liable to pay weekly payments, the tribunal must determine that compensation is not to be paid by the employer.
Under s 81A(3)(a), if the tribunal does not consider that the employer has such a reasonably
arguable case, it must order the employer to make weekly payments.2 No 13/2021
If the employer makes weekly payments pursuant to s 81(1), or pursuant to an order under s 81A(3)(a), it may still dispute its liability to make weekly payments by referring the worker's claim for compensation to the tribunal under s 42 or by seeking a review under s 88. Similarly, if the tribunal determines under s 81A(3)(c) that weekly payments are not to be made, the worker may refer the claim to the tribunal under s 42 and seek a determination requiring weekly payments to be made. 5 The only issue in this case is whether the procedure established by s 81A is available when the employer does not dispute an initial entitlement to compensation, but disputes liability to make continuing payments of compensation after a particular date. The appellant contends that the s 81A procedure is available only if the employer disputes liability from the outset. The State contends that the procedure is available not just when an employer disputes liability to pay any compensation at all, but also when the employer disputes liability to pay compensation after a particular date falling within the 84-day limitation period imposed by s 81A(1). In this case the State lodged its referral to the tribunal 80 days after receiving the appellant's claim for compensation.
6 Under s 86 of the Act, there is a separate procedure that applies when a worker has been receiving weekly payments, and the employer contends that the entitlement to weekly payments has ceased. The scheme created by that section can be summarised as follows:
Section 86 applies when "a medical practitioner who has examined the worker has certified that, in his [or her] opinion, the worker has wholly recovered or substantially recovered from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury": s 86(1)(c). The section also applies when a worker's entitlement to weekly payments has expired: ss 69B(2E),
86(1)(e). An employer who, on one of those bases, intends to terminate or reduce a worker's weekly payments must cause the worker to be served with a notice of its intention to do so at the expiration of 10 days from the day of service and, if applicable, also serve the s 86(1)(c) medical certificate. A worker served with such a notice may, within 60 days after the termination or reduction of the
weekly payments, refer the matter to the tribunal for determination: s 86(4). Section 86(5) provides, "An employer who terminates or reduces a weekly payment otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units." 7 In this case the State relies on the ordinary literal meaning of critical words in s 81A(1) and (3). The first of those subsections reads as follows:
"(1) An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81(1) or benefits under Division 2 of Part VI must, within 84 days of receiving the claim for compensation in respect of the
injury to the worker –
(a) serve the worker with written notice that the employer disputes liability –
(i) to pay compensation by way of weekly payments; or (ii)
to pay any benefits payable under Division 2 of Part VI in respect of the injury; and
(b) inform the worker of the reasons for disputing liability; and
(c) refer the matter to the Tribunal."
8 The State contends that it satisfies the description of "An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81(1)". [My
3 No 13/2021
emphasis.] It did not dispute liability in respect of the period up to 18 January 2021, nor for a limited
time thereafter, but had begun to dispute liability by the time of the referral of 12 March 2021.9 Section 81A(3) reads as follows:
"(3) The Tribunal must –
(a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or (b) if the Tribunal considers that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, order the employer to pay the cost of the benefits from such date as the Tribunal determines; or (c) if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments, determine that compensation is not to be paid by the employer; or (d) if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker, determine that the cost of the benefits is not to be paid by the employer."
10 The State contends that, within the meaning of s 81A(3)(c), "a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments". [My emphasis.] It does not contend that a reasonably arguable case existed until some time after 18 January 2021, but contends that a reasonably arguable case concerning its liability to continue to pay compensation by way of weekly payments after a date within the 84-day period is sufficient for the tribunal to make a determination under s 81A(3)(c).
11 In her reasons for her determination, the learned Chief Commissioner relied substantially on comments made by me as to the meaning of "liability" in Federal Hotels Ltd v Webb [2013] TASSC 36, 22 Tas R 283. That case concerned the effect of s 69(13) of the Act, a provision that does not apply to this case. That subsection reads as follows:
"(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."
12 In that case there had been a gap in certification of more than 14 days, after which the employee obtained a new medical certificate and sought the resumption of weekly payments on the basis that he was partially incapacitated for work. The employer accepted that the worker had an incapacity to work, but contended that it was no longer wholly or substantially due to his original injury, and referred the matter to the tribunal under s 81A. The tribunal held that, despite s 69(13), the s 81A procedure could only be used by an employer to dispute its initial liability to pay compensation. I held that when s 69(13) applied, s 81A could be invoked for the purpose of obtaining a determination as to liability to resume paying compensation, and reversed the tribunal's decision. I said the following at [19]:
"19 The strongest argument advanced by counsel for the worker was based on s25(1) of the Act. That is the foundational provision whereby, when a worker suffers an injury in certain specified circumstances, his or her employer is, subject to exceptions, 'liable to pay compensation in a accordance with this Act'. The word 'liable' in that provision refers to the sort of inchoate liability that arises immediately at the time of a worker's injury: State of Tasmania v Parsons (2002) 11 Tas R 26 at par[20]; Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6, per Porter J at par[5], and per Estcourt J, with whom Porter and Wood JJ agreed, at par[35]."
4 No 13/2021
13 At [20] I set out s 81A(1). I continued, at [21]:
"21 Counsel for the worker submitted that 'liability' has the same meaning in s81A(1) as it does in s25(1). If that were correct, ss69(13) and 81A could be invoked only when an employer contended that it had never had any liability to a worker in respect of an injury that was the subject of an initial claim. But in my view that is not correct. There is no logical reason why an employer who has paid compensation, and stopped paying it because of a gap in certification, should, after the presentation of a fresh medical certificate, have a fresh opportunity to contest foundational liability in the s25(1) sense in s81A proceedings, but not have an opportunity to contend in such proceedings that it has no ongoing obligation to pay compensation. The context and purpose of ss69(13) and 81A compel a conclusion that the word 'liability' should be given a wider meaning in s81A(1) than it has in s25(1)."
14 In her reasons at [22], the learned Chief Commissioner took the last sentence of [21] as establishing that "liability" in s 81A "refers to a liability to make weekly payments and does not include a requirement that the employer disputes initial liability". The obvious purpose of s 81A is to permit an employer to obtain an interim determination about liability to commence making compensation payments. The obvious purpose of s 69(13) is to permit an employer to use the s 81A procedure to obtain an interim determination about the resumption of compensation payments, as distinct from liability to commence making compensation payments in respect of a particular injury for the first time. It follows that the word "liability" in s 81A does not refer to the sort of inchoate foundational liability that is referred to in s 25(1), but to a liability to start making payments or, when s 69(13) applies, a liability to resume making payments. Nothing that I said in Federal Hotels Ltd v Webb about the meaning of "liability" related to the situation where s 69(13) does not apply, and there is no dispute as to whether the employer became liable to commence making compensation payments, but disputed liability to continue making them after a particular date.
15 A number of contextual features of the legislation support the view that, when s 69(13) does not apply, s 81A is available only in relation to disputes as to liability to commence making compensation payments, and not in relation to disputes as to their continuation:
The section refers only to disputes concerning liability to pay and does not refer to disputes
concerning the duration or cessation of liability to pay. When the tribunal makes a determination pursuant to s 81A(3)(c) that a reasonably arguable case exists concerning the liability of an employer to pay compensation by way of weekly payments, it is required simply to "determine that compensation is not to be paid by the employer". It is not given a power to determine a date from which weekly compensation payments are to stop. Similarly, when the tribunal makes a determination favourable to an employer as to medical expenses and the like under s 81A(3)(d), it is required simply to determine "that the cost of the benefits is not to be paid by the employer", and is not given the power to determine a date after which the employer is not to be liable for costs or expenses incurred. By virtue of s 86(5), any employer who terminates or reduces a weekly payment otherwise than in accordance with s 86 is guilty of a summary offence punishable by a fine. That strongly suggests that s 86 is intended to cover the field in respect of the termination or reduction of weekly payments after liability to commence payments has been accepted or established. Any employer who wishes to contend that a worker has ceased to be incapacitated, and should no longer receive weekly payments, may at any time seek a determination from the tribunal by invoking the procedure established by s 86. It would therefore be unnecessary, and somewhat absurd, for that employer to have a parallel route to the tribunal that could be taken by invoking s 81A within 84 days after receiving the claim for compensation, but not thereafter. 16 The history of the legislation suggests that s 81A and its predecessor, the original s 81(2), were intended only to provide a procedure in relation to disputes concerning liability to commence
5 No 13/2021
making compensation payments. The Act repealed and replaced the Workers' Compensation Act 1927. The repealed Act provided no machinery for the expeditious resolution of claims for weekly payments, nor did it provide any machinery to relieve hardship to a worker if the making of weekly payments was delayed pending a final hearing before a judge. The Act sought to overcome those deficiencies. In its original form, s 81 required an employer to commence making weekly payments within five days after receiving a claim for compensation, but enabled the employer to refer the matter to the Workers Compensation Commissioner for an interim determination before the worker's next pay day. When s 81A was introduced, its original limitation period was 14 days: Workers Compensation Amendment Act 1992, s 9. Subsequent amendments increased the limitation period first to 28 days and then to 84 days: Workers Rehabilitation and Compensation Amendment Act 2000, s 52; Workers Rehabilitation and Compensation Amendment (Miscellaneous) Act 2004, s 24.
17 The proper approach to the question of statutory construction that arises in this case is as stated by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27, where their Honours said, at [47]:
"[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." [Footnotes omitted.]
18 The words "liability to pay compensation" in s 81A(1) and the words "the liability of the employer to pay compensation" in s 81A(3)(c), taken literally, would appear to refer not just to liability to commence paying compensation, but also to liability to continue paying compensation. However, when one considers the context, history and purpose of the provisions in question, having regard to the matters referred to above, it must be concluded that those words refer only to liability to commence paying compensation.
19 It follows that the tribunal did not have jurisdiction to deal with the State's purported s 81A referral, and that the determination of the tribunal must be set aside and the purported s 81A referral dismissed.
20 I wish to add some comments concerning an argument relied upon by counsel for the appellant concerning the onus of proof. It was submitted that if s 81A did apply to disputes concerning the continuation of weekly payments, the only recourse of a worker in the appellant's situation would be a s 42 referral, and the worker would then bear the onus of proof. It was argued that, by contrast, the employer would bear the onus of proof in the event of a s 86(4) referral; that the Act is a piece of beneficial legislation; that any ambiguity therefore ought to be resolved in favour of the class of persons intended to be benefited, namely workers; and that an interpretation of s 81A that could result in a worker bearing the onus of proof should therefore be rejected. As authority for the proposition that the worker would bear the onus of proof in a s 42 referral, reliance was placed on a comment by Cox CJ in CL & VN Barber Pty Ltd v Ryan [1999] TASSC 5, 8 Tas R 308, at [5]. However that was a case about an interruption in the provision of medical certificates, not a case about whether a worker had ceased to be incapacitated. Section 49(2)(b) of the Act provides that, in proceedings before the tribunal, "the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer". If s 81A were interpreted as applying to disputes about the continuation of liability to pay compensation, s 49(2)(b) would apply to any s 42 referral relating to such a dispute because s 81A provides only for interim determinations. The argument concerning the onus of proof was therefore misconceived.
6 No 13/2021
File No FCA 882/2021
SHANE ALASI-JONES v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J |
27 October 2021
Background to the appeal
21 The appellant, Shane Alasi-Jones, appealed to a single judge of this Court against a determination of Chief Commissioner Clues of the Workers Rehabilitation and Compensation Tribunal (the Tribunal) made on 31 March 2021, (The State of Tasmania (Department of Health) v A [2021] TASWRCT 13).
22 The learned Chief Commissioner held at [23] and [24] of her reasons that the Tribunal is empowered to make an order pursuant to s 81A(3)(c) of the Workers Rehabilitation and Compensation Act 1988 (the Act), in circumstances where it finds that there is no dispute that the worker was initially entitled to weekly payments pursuant to a valid claim for compensation, but where there is a reasonably arguable case that the worker has recovered to the extent that he or she can recommence his or her usual work.
23 The appeal has been referred to a Full Court pursuant to r 703(4) of the Supreme Court Rules
2000.
24 As noted by the Chief Commissioner in her reasons for determination at [1], the facts of the matter are not in dispute. The appellant is a hospital aide employed at the Launceston General Hospital. He asserted in his claim documents that on 11 December 2020 he received personal abuse from a work colleague who accused him of not doing his job. He was certified as unfit for work from 14 December 2020. He made a claim for workers compensation on 22 December 2020. He was certified as totally incapacitated for work from 14 December 2020 until 17 January 2021, certified as fit for suitable duties from 18 January 2021 until 26 February 2021, and then was certified as totally incapacitated for work from 22 February 2021 until 12 March 2021. No medical certificates beyond that date were in evidence before the Tribunal.
25 The respondent, the appellant's employer, disputed liability on 12 March 2021 and referred its dispute to the Tribunal pursuant to s 81A of the Act. The grounds for the dispute were that the appellant was not presently suffering any compensable injury or disease and was not incapacitated for work.
26 The respondent sought an order from the Tribunal that it be relieved of its obligation to make weekly payments of compensation to the appellant pursuant to s 81A(3)(c), but it did not seek an order that it be relieved of its obligation to pay the cost of benefits payable under Division 2 of Part VI of the Act.
27 The respondent relied upon a report prepared by Dr Peter Miller, consultant psychiatrist, dated 22 February 2021. He assessed the appellant at the request of the respondent on 15 February 2021.
28 As set out at [3] of the Chief Commissioner's reasons, Dr Miller obtained the following history from the appellant:
" The worker has been a hospital aide at the Launceston General Hospital since 2015
and his permanent position is 0.8FTE, or 32 hours per week. He is one of four hospital aides. 7 No 13/2021
The worker has had difficulties with one of his co-workers ever since he
started at the hospital. A mediation process took place on 14 November 2020 and all the hospital aides attended. A written agreement was prepared and signed by all four aides. It dealt with how they were expected to treat each other and how they were to conduct handovers, conflicts and tasks. On 11 December 2020 the worker claims he was verbally abused by his co- worker. She accused him of not doing his job. The worker claims this incident represented a breach of the signed agreement. The worker saw this as the final straw and became distressed over the next
2 days. He saw his general practitioner on 14 December 2020 and was certified
incapacitated for work. By 18 January 2021 the worker was ready to return to work 3 days a week,
8 hours a day. The worker was rostered away from his co-worker and 'has been able to
perform his work as usual'."
29 On the history he was given, Dr Miller made a diagnosis of an adjustment disorder with anxiety and depressed mood. He considered the appellant's employment was the major or most significant contributing factor to the condition. He opined that the appellant suffered full incapacity for work from 14 December 2020 until his return to work on 18 January 2021, and then partial incapacity for a limited time, but had subsequently, wholly or substantially recovered from the effects of any work injury he suffered and again had the capacity for working his usual hours and duties.
The issue
30 The Chief Commissioner in her reasons at [7]-[11] posed the issue for her consideration as
follows:
The issue
"at [10]:
The issue to be determined is whether it is open to the Tribunal to find that a
reasonably arguable case exists where evidence is presented in the form of a medical
opinion that the worker has recovered from the injury/disease that is the subject of the
claim.
This issue has been considered by this Tribunal in a number of cases including:
Clifton Pacific Oysters Unit Trust (t/as Clifton Pacific Oysters Pty Ltd) v J. [2008]
TASWRCT 6; Not Just Bras v M. [2013] TASWRCT 36 and TasWater v H. [2013]
TASWRCT 39.'The case at hand raises the question whether s81A is available to an employer who initially accepted a liability to pay compensation but now seeks to dispute that liability on the basis that the worker has recovered from his injury and no longer has an incapacity entitling him to compensation? It is my view that an employer may legitimately utilise s81A in this circumstance. My conclusion
would of course be different (following Walker) if it was the employer's case that
the worker had an on-going part incapacity and the issue giving rise to disputewas the amount of compensation payable because of that partial incapacity.'
Further, in the case of Not Just Bras v M. (supra), Commissioner Chandler held at [9]:
'It is my view that in this case I should follow the same course as I did in Clifton Pacific Oysters. This leads me to determine that s81A may be utilised by the employer to dispute liability for the worker's claims in that circumstance where it contends, based upon the most recent opinion of [medical practitioner], that the worker is fully recovered and has no on-going incapacity. Obviously, if this
8 No 13/2021
opinion prevailed following a contested hearing, then the employer may avoid
any further liability.'
I note that in the matter of TasWater v H (supra), counsel for the worker was the same as counsel for the worker in this case and he made the same submissions without success. In that decision Chief Commissioner Carey held at [9] that an "employer is
able to establish that a reasonably arguable case exists on the basis that although accepting there was an initial liability to make weekly payments, such liability had
subsequently ceased"'."
The Tribunal's consideration of the issue
31 The Chief Commissioner set out the following consideration of the issue before her at [16]-
[23] of her reasons:
"Counsel for the worker submits that if the dispute is about whether the worker has a total or partial incapacity, s81A has no role to play. That is correct based on the authority of Walker v J & A Freeman Building Services [2006] TASSC 90. However, that case is distinguishable from this case.
In Walker v Freeman (supra) the dispute the employer sought to raise was about the extent of the worker's incapacity for work and its liability to make weekly payments at a particular amount. In this case, the employer submits that at this time it has no liability to make weekly payments at all because whilst the worker's injury/disease initially may have had a causative link with his employment, based on the report of Dr Miller, that is no longer the situation.
Counsel for the worker relies upon the following passages from Walker v Freeman (supra) to support the argument that s81A does not apply to claims where the employer does not dispute initial liability:
'Section 81A(1) is intended to provide a measure of relief to an employer who claims to have a case that it has no liability to pay weekly compensation and seeks to be relieved of the obligation imposed by s81.[1]
[1] See Walker v Freeman (supra), Crawford J at [22].
Having regard to the matters I have referred to, I think that the word "liability" in s81A should be interpreted as referring to liability per se, as distinct from quantum. I think section 81A(1), when it refers to an employer "who disputes liability to pay compensation by way of weekly payments' refers only to an employer who disputes liability to pay any weekly payments at all. I think section 81A(3)(c) requires the Tribunal to determine that compensation is not to be paid only when it considers that a reasonably arguable case exists concerning the liability of an employer to pay any compensation by way of weekly payments at all."[2]
[2] See Walker v Freeman (supra), Blow J at [72].
As previously stated Walker v Freeman (supra) related to a dispute as to the quantum of weekly payments to be made to a worker based on differing medical opinions as to the extent of the worker's incapacity for work.
The term 'liability' as it appears in s81A to make weekly payments was further considered by Blow CJ. in Federal Hotels Limited v Webb [2013] TASSC 36. In that case Blow CJ. was primarily concerned with the interpretation of s 69(13). However, like Chief Commissioner Carey in TasWater v H (supra) I take the view that given his Honour's determination that s81A applies equally to an initial claim for compensation as it does to a medical certificate treated as a claim for compensation pursuant to s69(13) that his comments are directly applicable to this case[3].
[3] See TasWater v H (supra) at [7].
In Federal Hotels Limited v Webb (supra) Blow CJ. held at [21]:
'Counsel for the worker submitted that "liability" has the same meaning in s81A(1) as it does in s25(1). If that were correct ss69(13) and 81A could be invoked only when an employer contended that it never had any liability to a worker in respect of an injury that was the subject of an initial claim. But in my view that is not correct. There is no logical reason why an employer who has
9 No 13/2021
paid compensation, and stopped paying it because of a gap in certification, should, after the presentation of a fresh medical certificate, have a fresh opportunity to contest foundational liability in the s25(1) sense in a s81A proceedings, but not have an opportunity to contend in such proceedings that it has no ongoing obligation to pay compensation. The context and purpose of ss69(13) and 81A compel a conclusion that the word "liability" should be given a wider meaning in s81A(1) than it has in s25(1).'
Based on this reasoning, I accept the employer's submission that 'liability' in s 81A refers to a liability to make weekly payments and does not include a requirement that the employer dispute initial liability.
I further accept the employer's submission that Walker v Freeman (supra) is not authority for the proposition that s81A is not available to an employer to dispute liability on the basis that a worker has recovered."
The legislation
32 Section 25(1) of the Act provides as follows:
"Liability of employers to compensate workers for injuries
(1) If in any employment –
(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or (b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) –
his employer is, except as is otherwise provided by this Act, liable to pay
compensation in accordance with this Act –
(c) to the worker; or (d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."
33 Section 46 of the Act provides as follows:
"42 Reference of claims for compensation to Tribunal (1) A claim for compensation may be referred to the Tribunal by –
(a) an injured worker or a dependant of an injured worker; or (b) the employer of an injured worker; or (c) the licensed insurer of an employer. (d) …
(2) A claim for compensation is to be referred to the Tribunal by application, in a form approved by the Chief Commissioner, filed with the Registrar.
(3) Where an application is filed with the Registrar, the Registrar shall, as soon as
practicable, forward the application to the Tribunal.
(4) On receipt of an application from the Registrar, the Tribunal shall determine the
persons who appear to it from the application to have an interest in the settlement of
the claim for compensation to which the application relates and shall advise the
Registrar of the names of those persons.
(5) The Registrar shall, as soon as practicable after being advised of the names of the persons who appear to the Tribunal to have an interest in the settlement of the claim for compensation to which the application relates, serve those persons with a notice containing particulars of the claim."
34 Section 69(13) of the Act provides as follows:
10 No 13/2021
"(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."
35 Section 81A of the Act provides as follows:
"81A Disputes of liability for weekly payments and other benefits (1) An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81 (1) or benefits under Division 2 of Part VI must, within 84 days of receiving the claim for compensation in respect
of the injury to the worker –
(a) serve the worker with written notice that the employer disputes liability –
(i) to pay compensation by way of weekly payments; or (ii)
to pay any benefits payable under Division 2 of Part VI in respect of the injury; and
(b) inform the worker of the reasons for disputing liability; and (c) refer the matter to the Tribunal.
(2) The referral of a matter to the Tribunal is to be accompanied by –
(a) the prescribed fee; and (b) all evidentiary material on which the employer intends to rely at the hearing of the matter. (2AA) If an employer fails to lodge evidentiary material under subsection (2)(b) , the employer may not rely on that material unless the Tribunal otherwise allows.
(2A) Where a matter is referred to the Tribunal under subsection (1) , the Tribunal may authorise the Registrar to determine whether a reasonably arguable case
exists concerning the liability of the employer to pay–
(a) compensation by way of weekly payments; or
(b)
the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker.
(2B) The Registrar is to advise the Tribunal of the Registrar's determination.
(2C) The Tribunal may make an order giving effect to the Registrar's
determination.
(3) The Tribunal must –
(a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or (b) if the Tribunal considers that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, order the employer to pay the cost of the benefits from such date as the Tribunal determines; or (c) if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments, determine that compensation is not to be paid by the employer; or (d) if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker, determine that the cost of the benefits is not to be paid by the employer. (4) The fact that the Tribunal has determined under subsection (3) that weekly payments should be made, or that the cost of any benefits payable under Division
11 No 13/2021
2 of Part VI in respect of the injury to the worker should be paid, is not to be taken
into account by the Tribunal in any other proceedings under this Act.(5) Notwithstanding that liability has not been disputed in accordance with subsection (1), 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), refer the matter to the Tribunal.
(6) For the purposes of this section, the Tribunal or the Registrar may conduct any hearing the Tribunal or the Registrar considers necessary by any appropriate means including, but not limited to, a telephone conference."
36 Section 86 of the Act provides as follows:
"86 Cases in which employer may terminate or reduce payments (1) Except in pursuance of a determination made by the Tribunal under section 88(2), an employer may, subject to this section, terminate or reduce a weekly payment
made to a worker only where –
(a)
the payment is in respect of total incapacity and the worker has returned to work;
(b)
the worker is in receipt of the weekly payment in respect of partial incapacity and is receiving weekly earnings in excess of the amount upon which the amount of such weekly payment was determined;
(c)
a medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury; or
(d) …
(e) a worker's entitlement to weekly payments has expired as provided by section 69B(2E).
(2) A certificate referred to in subsection (1)(c) shall specify the grounds upon which the opinion expressed in it is given.
(3) An employer who, for the reasons specified in subsection (1)(c), (d) or (e), intends to terminate or reduce a weekly payment made to a worker shall cause to be
served on the worker –
(a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and (b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1)(c), a copy of that certificate.
(3A) A notice referred to in subsection (3)(a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination.
(4) A worker who has been served with a notice under subsection (3)(a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination.
(5) An employer who terminates or reduces a weekly payment otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units."
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The Tribunal's determination of the issue
37 For the reasons set out above, the Chief Commissioner was satisfied that, given the opinion of Dr Miller that the appellant had wholly or substantially recovered from the effects of any work injury he had suffered, and that he was not incapacitated for his usual duties and hours, s 81A of the Act could be utilised by the respondent to dispute liability for the appellant's claim.
38 The Chief Commissioner was of the view that if the opinion of Dr Miller prevailed following a contested hearing of the question of incapacity, then the respondent might avoid any further liability for weekly payments of compensation. She determined that a reasonably arguable case existed as to the respondent's liability to make weekly payments pursuant to s 81A(3)(c) of the Act.
The appellant's contentions
39 The appellant submits that s 81A was never intended to apply to circumstances such as those in the present case. It is the appellant's contention that the legislative intent of the Act is that if an employer has evidence that a worker has recovered from his or her injury, the appropriate recourse is to invoke the procedure contained in s 86 of that Act and that at a hearing of a referral pursuant to s 86(4) the onus is on the employer to prove lack of capacity (John Michael Ryan v McCain Foods (Aust) Pty Ltd and QBE Insurance Ltd (1995) 4 Tas R 101).
40 The appellant argues that if the Chief Commissioner's decision is correct then a worker only has recourse to a referral pursuant to s 42 of the Act and that on such a referral the onus of proof lies with the worker (C L & V N Barber Pty Ltd v Ryan, Peter Vernie [1999] TASSC 5, 8 Tas R 308). Thus, the appellant argues, the Tribunal's interpretation of s 86 is unfavourable to workers and the appellant's interpretation should be preferred.
41 The appellant points out that at the hearing of this matter before the Tribunal he relied on the reasoning of the majority of the Full Court in Walker v J & A Freeman Building Services [2006] TASSC 90, 16 Tas R 87 as authority for the view that the Act should be interpreted literally and narrowly, and that while s 81A(1) allows an employer to dispute liability to pay weekly payments, the ambit of dispute is to be confined to the "payment of weekly payments per se", and ought not to allow the Tribunal to order that weekly payments are payable for a limited period. The appellant complains that the Chief Commissioner chose to interpret the decision in Walker v J & A Freeman Building Services very narrowly as only preventing consideration of disputes where only the quantum of weekly payments of compensation was in dispute.
42 The appellant contends that Federal Hotels Limited v Webb [2013] TASSC 36, 22 Tas R 283 is not authority for the construction adopted by the Chief Commissioner, as that case involved a finding that at a s 81A hearing, following a s 69(13) break in certification, the Tribunal was not limited to considering liability at the time of the initial claim for compensation, but rather that the Tribunal could consider whether the worker remained incapacitated as a result of the work injury at the time of the re-certification after such an interval. The appellant submits that to "find that the decision in Federal Hotels Limited v Webb could be extended to allow the current consideration absent a s 69(13) break in certification is not justified. See Federal Hotels Limited v Webb [8], [13- 14], [16] and [25]".
The respondent's contentions
43 After commencing the writing of these reasons I had the very considerable advantage of reading the reasons prepared by Blow CJ. The contentions advanced by the State are compendiously analysed by his Honour and I will not repeat them here.
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The scope of s 81A
44 The decisions in Walker v J & A Freeman Building Services and Federal Hotels Limited v Webb involve factual scenarios in which a worker was certified as incapacitated for work for a period, and then returned to work and was subsequently certified again as unfit, whereupon the employer made a s 81A referral to the Tribunal. It is tolerably clear in those factual scenarios that s 69(13) of the Act can be said to have been engaged in that the period specified in a medical certificate provided by a worker had expired, and the worker had provided a further certificate more than 14 days after the expiration of the last period of certified incapacity. The employer was therefore entitled to treat the new certificate as a claim for compensation to which s 81A applied.
45 In the present case the appellant was continually the subject of medical certification as to capacity for work from the date of injury on 14 December 2020 until the date of the s 81A referral on 12 March 2021. From 14 December 2020 until 18 January 2021 the appellant was certified as "incapacitated for work". Then from 18 January 2021 until 22 February 2021 he was certified as "fit for suitable duties", which statement was explained in the medical certificates issued as meaning fit "provided a safe environment is provided and current conflict is avoided." Then, on 22 February 2021 the appellant was again certified as "incapacitated for work".
46 There was never a time when, in the terms of s 69(13) of the Act, "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."
47 I am grateful to his Honour for his detailed exposition of the scope of s 81A and his analysis of the history of the Act, and I respectfully agree with his conclusion.
Disposition
48 For the reasons given by Blow CJ, the learned Chief Commissioner erred in the determination she made and the appeal should be allowed. As his Honour concludes, "the tribunal did not have jurisdiction to deal with the State's purported s 81A referral, and that the determination of the tribunal must be set aside and the purported s 81A referral dismissed."
49 I agree with the orders proposed by his Honour.
14 No 13/2021
File No FCA 882/2021
SHANE ALASI-JONES v STATE OF TASMANIA
| REASONS FOR JUDGMENT | FULL COURT BRETT J 27 October 2021 |
50 I have had the advantage of reading the reasons for judgment of Blow CJ and Estcourt J. I agree with their Honours that the appeal should be allowed, the Tribunal's determination set aside, and the referral under s 81A of the Workers Rehabilitation and Compensation Act 1988 dismissed.
51 In particular, I agree with the conclusion reached by Blow CJ that s 81A is only available where an employer disputes liability to pay compensation at all, that is, to commence paying weekly payments or benefits under Division 2 of Part VI. I agree with his Honour's reasons, including his explanation of the contextual aspects of the legislative scheme, for arriving at that conclusion.
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