G L & V N Barber Pty Ltd v Ryan

[1999] TASSC 5

[1999] TASSC 5

PARTIES:  G L & V N BARBER PTY LTD

v
RYAN, Peter Vernie

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

JURISDICTION:  APPELLATE
FILE NO/S:  FCA 67/1998
DELIVERED:  5 February 1999
HEARING DATE/S:  3 November 1998
JUDGMENT OF:  Cox CJ, Crawford J, Slicer J

CATCHWORDS:

Workers Compensation - Assessment and amount of compensation - Cessation of payments - Right of employer generally - Suspension of weekly payments where incapacity not certified - Whether presentation of fresh medical certificate amounts to a new claim for compensation - Whether failure of employer to dispute liability in accordance with the Act renders employer liable to resume payments.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss69(1), 81(1), 81A(1).
Aust Dig Workers Compensation [231]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  B R McTaggart
Solicitors:
             Appellant:  Griffith & Jackson
             Respondent:  Jennings Elliott

Judgment category classification:
Judgment ID Number:  [1999] TASSC 5
Number of pages:  13

Serial No 5/1999
File No FCA 67/1998

G L & V N BARBER PTY LTD v PETER VERNIE RYAN

REASONS FOR JUDGMENT  FULL COURT

COX CJ
CRAWFORD J
SLICER J

5 February 1999

Order of the Court

Appeal dismissed.

Serial No 5/1999
File No FCA 67/1998

G L & V N BARBER PTY LTD v PETER VERNIE RYAN

REASONS FOR JUDGMENT  FULL COURT

COX CJ

5 February 1999

1. The appellant ("the employer") made weekly payments of compensation to the respondent ("the worker") in respect of an injury sustained in the course of his employment in February 1995.  The payments were made on the basis of total incapacity and on receipt of the initial claim, the employer did not, pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A(1) or s81A(5), seek to refer the issue of its liability to make them. In consequence, pursuant to s81AB, the employer was taken to have accepted liability in respect of that claim.

1. On 11 November 1995, the employer, relying on a medical practitioner's certificate, purported to terminate the payment of weekly payments pursuant to the Act, s86(1)(c). The worker referred the termination to the Tribunal. On 17 July 1996, the Tribunal found that the certificate upon which the employer relied did not satisfy the requirements of s86(1)(c) and ordered that the employer reinstate the weekly payments to the worker in accordance with the Act from the date of the purported termination. When the order was made, the employer only had a certificate of the worker's incapacity for work until 16 November 1995 and so brought the weekly payments up to that date. On 24 July 1996, the worker obtained a certificate that he was totally incapacitated for work from 16 November 1995 until 24 August 1996. The certificate was provided to the employer on 30 July 1996. The employer made no payments on the basis of the certificate and, on 6 August 1996, the worker initiated a reference to the Tribunal under the Act, s42, seeking an order that the employer pay him weekly payments of $770.27 gross from 16 November 1995, that being the amount payable at that time.

1. After a number of hearings, the learned Commissioner who constituted the Tribunal, ordered the employer to make weekly payments of compensation for the period covered by the certificate presented to the employer on 30 July 1996, namely from 16 November 1995 to 24 August 1996, but at a lower rate than had been payable pursuant to the medical certificate up to 16 November 1995.  Both employer and worker appealed, the former on the basis that it was not liable to pay anything after the date to which the medical certificate of incapacity related, and the latter on the basis that the Tribunal had no jurisdiction to order that any lower rate be paid.  The worker's appeal was upheld, while the employer's appeal was dismissed.  The employer now challenges both orders of the learned primary judge.

1. The employer's submission is that having lawfully ceased to make payments of weekly compensation after 16 November 1995 when the last certificate of incapacity had expired, it was under no obligation to make further payments.  Even when the worker presented a fresh certificate of incapacity, whether prospective or retrospective, the employer submits it was not obliged to commence making payments until the Tribunal so ordered and that the onus rests on the worker to prove his entitlement and the quantum thereof, both of which the employer is entitled to challenge anew.

1. It is clearly the case that for the period from 16 November 1995 to 30 July 1996, the employer was not obliged to pay the worker weekly payments, as the employer had not been provided with a certificate of the worker's incapacity as required by s69(1) (Pasminco Australia Ltd trading as Pasminco Metals - EZ v Simmons A50/1993; Viney v Roney Management Pty Ltd (1996) 6 Tas R 240; Muir v Dance (1997) 7 Tas R 1) and that following the termination of a worker's entitlement to compensation, upon his reviving his claim by the delivery of a certificate of his disability, the onus is on the worker to establish his entitlement to compensation (State of Tasmania v Corba (1997) 7 Tas R 186; Brambles Holdings Ltd v Pincott A30/1994). The employer argues, however, that the cessation in the employer's obligation to make weekly payments, consequent upon the failure of the worker to produce a medical certificate for the relevant period, amounted to a termination of the worker's entitlement to compensation pursuant to the Act and that in consequence it was entitled to challenge the worker's right to any further payments (whether prospective or retrospective) and was under no obligation to make any such payments until the Tribunal, after a hearing on the merits, so ordered.

1. The learned primary judge took the view that such a cessation of the obligation to make payments did not amount to a termination within the meaning of s86. He recorded the employer's submission that unfairness to it could result from a retrospective certification of incapacity which could not be challenged, notwithstanding the existence of evidence to the contrary. In the present case, it is said, there is evidence that the worker was not in fact incapacitated during the period November 1995 to July 1996 when the certificate was presented. Yet the effect of his Honour's order is that the employer has no means of establishing that fact once the certificate has been presented. Furthermore, it is submitted that the only means by which the employer might seek relief from a potential obligation to reinstate the weekly payments retrospectively is by way of s88, which can only be relied upon if the employer is already making weekly payments (see Atkinson v Nipper Cleaning Services Pty Ltd (1992) 1 Tas R 276 at 290; Gulf Industries Pty Ltd v Barnett (1996) 6 Tas R 142 at 154 - 155). Hence, where a worker fails to present any further medical certificate, but the employer wishes to guard against the possibility of being presented with a retrospective one, it must recommence weekly payments before referring the matter under s88.

1. On the other hand, the learned primary judge pointed out that if a suspension or cessation of weekly payments consequent upon the failure to produce a certificate under s69(1) was given the force of a termination, this could be most unfair to workers. He concluded:

"Whenever a certificate was delivered subsequent to the expiration of the immediately prior certificate, the employer could refuse to pay weekly payments until the worker had re-established his or her entitlement under the Act. Workers are dependent upon medical practitioners for certificates of disability. The exigencies of medical practitioners' lives make it inevitable that, on occasions, there will be delays in the provision of certificates. Reimposing the obligation of establishing liability on a worker whenever there was a lapse in the provision of medical certificates would be a great hardship. If this was intended, it is to be expected that there would be a clear provision in the Act to this effect. There is not.

Section 86(1) of the Act details the circumstances in which employers may terminate the payment of weekly payments:

…

The section expressly confines the circumstances in which a worker's weekly payments can be terminated to those detailed in the section or a determination of the Tribunal. The circumstances do not include the non-delivery of an appropriate certificate of the worker's disability pursuant to the s69(1) of the Act. That this omission may expose an employer who receives a retrospective certificate of disability to injustice does not justify disregarding the clear effect of s86." (87/1998 at 5)

1. He also referred to Zeeman J's observation in Viney v Roney Management Pty Ltd (supra) at 245 - 246, that the withholding of a payment where the worker fails to present a medical certificate "does not amount to a termination of the weekly payment. All that occurs is that the obligation to make the actual payment is left in abeyance until such time as the relevant medical certificate is presented."

1. In my opinion, the relevant question is not whether a cessation of payment in circumstances of this nature amounts to a termination within the meaning of s86(1), but whether the presentation of a fresh certificate of incapacity after a break in the continuity of certification to that effect amounts to a further claim for workers compensation which attracts the provisions of s81 et seq.  These sections relevantly provide:

   "81 ¾ (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 ¾

   (a)is not later than 14 days after the receipt of that claim, the employer must ¾

   (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)       ...

   (3)       Subsection (1) does not apply to an employer who ¾

   (a)in accordance with section 81AA, defers making a decision to accept or dispute liability to pay compensation by way of weekly payments or other benefits; or

   (b)in accordance with section 81A(1), disputes liability to pay compensation by way of weekly payments or other benefits.

   (4)       ...

   81AA ¾ (1)    An employer who requires further information to determine whether the claim for compensation gives rise to an entitlement under this Act may defer a decision to accept or dispute liability to pay compensation by way of weekly payments or other benefits.

   (2)       …

   (3)An employer who has deferred a decision under subsection (1) must, within 28 days of receiving the claim for compensation in respect of the injury to the worker ¾

   (a)accept liability and commence payment of weekly payments or other benefits to the worker; or

   (b)       dispute liability and comply with section 81A.

   (4)       …

   (5)       …

   (6)       …

   81A ¾ (1)      An employer who disputes liability ¾

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

   (b)to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury ¾

   must, within 14 days of receiving the claim for compensation in respect of the injury to the worker ¾

   (c)serve the worker with written notice that the employer disputes liability ¾

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

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

   (d)refer the matter to the Tribunal.

   (2)       An employer who refers a matter to the Tribunal under subsection (1) must, at the time of referring the matter to the Tribunal, advise the Tribunal in writing whether or not weekly payments are being made to the worker pending determination of the matter by the Tribunal.

   (2A)     Where a matter is referred to the Tribunal under subsection (1), the Tribunal may authorize the Registrar to determine whether a genuine dispute exists concerning the liability of the employer to pay ¾

   (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 ¾

   (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)…

   (c)if the Tribunal considers that a genuine dispute 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)…

   (4)       ...

   (5) Notwithstanding that liability has not been disputed in accordance with subsection (1) or section 81AA(3), an employer who wishes to dispute liability to continue to pay compensation by way of weekly payments for an injury referred to in section 81(1) or to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury may, at any time after the expiration of the period referred to in subsection (1) of this section or section 81AA(3), as the case may be, refer the matter to the Tribunal.

   (6)       ...

   81AB Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the employer does not, in accordance with section 81AA or section 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim."

1. If the presentation of a fresh certificate does amount to a claim for compensation within these provisions, the claimed unfairness to both employer and worker disappears. The employer, upon receiving the claim, again has the right to dispute the worker's entitlement to payment, but only if it makes up its mind to do so promptly and refers the matter to the Tribunal. If it fails to do so, then it will be taken to have admitted its liability in respect of that claim (s81AB) and if the worker, to enforce his right to receive the payment, refers the matter to the Tribunal under s42, the only issue before the Tribunal will be whether the worker has established the preconditions to payment prescribed by s81(1), namely that the employer has received a claim for compensation accompanied by a medical certificate in an approved form and that the claim is in relation to an injury to a worker employed by the employer (Freemasons Homes of Southern Tasmania v Greenwood (1996) 5 Tas R 445). The worker's right to protection against delay in the hearing of a reference by way of interim summary awards is afforded by s60A and s81A(2A) et seq.  In the case of a retrospective certificate of incapacity, the employer would have the opportunity of a hearing on the merits as to the genuineness of the claimed incapacity while the worker, if he has allowed the certification to lapse through oversight on his part or through inability to procure it from his busy medical adviser, has ample protection, at least so far as current payments are concerned.  Unless an employer has a genuine reason to challenge the worker's entitlement, I find it hard to see how it would be to its advantage, or to that of its insurer, to do so.

1. I am conscious that different views from my own have been expressed about the meaning of a "claim for compensation" within the meaning of s81(1). Section 3(1) provides:

   "3 ¾ (1)         In this Act, unless the contrary intention appears ¾
   …

   '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;"

1. In FAI Insurance Co Ltd v MMI - CMI Insurance Ltd 14/1992 (noted at (1992) 1 Tas R 404 (NC 5)), Zeeman J dealt with a dispute between two insurers of an employer (the third respondent) who had not disputed liability in respect of a claim for the medical expenses of a worker (the second respondent) who subsequently became incapacitated for work and claimed weekly payments. At the time, s81(2) provided in substance what is now provided in s81A(1). At 7, his Honour said:

   "The right of the third respondent to proceed under s81(2) requires some consideration. Difficulties arise as to how the expression 'claim for compensation' appearing in s81 is to be construed. There are some difficulties in applying the extended meaning given to that expression by s3(1). Section 81(1) and (2) speak of a claim for compensation being 'received'. That is indicative of the reference being to a claim for compensation within the meaning of s32(1)(b). There can be only one such claim in respect of any one injury. The making of a claim removes one of the bars to an entitlement to compensation provided for by s32(1). Nevertheless, the application of such a limited construction upon the expression creates other difficulties. Section 81(1) applies to 'a claim for compensation in relation to an injury to a worker employed by him in respect of which the employer is liable to pay compensation in accordance with this Act' and imposes an obligation to pay 'the first of the weekly payments provided for in section 69' within a certain time. Not every claim when received by the employer results in the worker having a present entitlement to receive a weekly payment. If the relevant injury of the second respondent occurred on 15 June 1990 the third respondent thereupon became liable to pay compensation by virtue of s25(1). What became payable and when it became payable fell to be determined by the Act, Part VI. That is in accord with what was decided in The Electrolytic Zinc Company of Australasia Ltd. v Maister No 23/1990, which I follow as correctly stating the law, notwithstanding the criticisms of that case by the learned Commissioner. Nothing became payable by way of a weekly payment until about 15 months later. If the expression is to be given its primary meaning an employer wishing to invoke s81(2) in a case such as the present would need to do so at a time when no period of incapacity is anticipated or contemplated. That is quite inappropriate. Nevertheless, I consider that that is the effect of s81 as it is quite impossible to give the expression its extended meaning where it appears in that section. One cannot 'receive' a 'matter or question arising in connection with or incidental' to a claim for compensation."

2. In Chorley v Hazel Pty Ltd A17/1993, the appellant worker was paid compensation and on his return to work that compensation was lawfully terminated by his employer. He suffered a recurrence of his injury and applied for reinstatement of his weekly payments, supported by a medical certificate. This was referred to in the case as a "fresh claim". Zeeman J held that the Workers Compensation Commissioner had jurisdiction to hear the worker's reference under s42, but in passing said at 4:

   "The applicant is now asserting a right to receive further weekly compensation based on a recurrence of his injury resulting in further incapacity. Although the learned Commissioner refers to a further claim having been made, it has been said in this Court on numerous occasions that no further claim is required in such circumstances (see Harris v TSS Pty Ltd and Sun Alliance Insurance Group Ltd 46/1992, per Underwood J at 5)."

1. What was in issue in each of the above four cases was not whether or not there could be more than one claim for compensation within the meaning of s81 so as to bring into play the option on the part of the employer to dispute a further claim or in default to accept liability therefor.  The point of time at which the rights and liabilities of the worker and the employer respectively to receive and to pay compensation were vested was in issue in The Electrolytic Zinc Company of Australasia Limited v Edgar Maister A23/1990.  In that case, Underwood J referred to Fenton v J C Hutton Pty Ltd [1972] Tas SR (NC11), 34/1972 in which Neasey J held that the relevant time was the time of the injury.  Underwood J went on to say, at 8:

   "It has long been accepted in the field of workers' compensation, as between employer and employee that, when a worker suffers a relevant event in the prescribed circumstances, there is imposed on the employer an immediate obligation to pay compensation when, and to those persons and in the amounts which the Act specifies, in relation to events which may thereafter occur and which result from the relevant event. See Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at p42; Moakes v Blackwell Colliery Co [1925] 2 KB 64; Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647; Fisher v Hebburn Ltd (1960) 105 C.L.R. 188 at pp202, 203."

   Accordingly, he held that as at no time while the Worker's Compensation Act 1927 was in force did the worker suffer a compensable injury, notwithstanding the gradual development of industrial deafness due to his exposure to noise in thirty years of working for the appellant in that case and as it had not deteriorated after the commencement of the 1988 Act which, unlike the earlier Act, made industrial deafness compensable, notwithstanding that it did not incapacitate the worker, the worker could not be said to have suffered an injury giving rise to those rights and liabilities.

1. In FAI Insurance v MMI - CMI Insurance Ltd, the issue was one of the Commissioner's jurisdiction to determine references purportedly made under s81 by the insurers who were seeking to saddle each other with liability for the worker's incapacity which had developed after the initial injury, one being the insurer at the time of that traumatic incident, while the other insured the employer at the time the incapacity occurred as the result of Post-Traumatic Stress Disorder. Zeeman J held that the Commissioner had no jurisdiction to make a determination as to which of two or more insurers is liable to indemnify a particular employer in respect of a particular liability arising under the Act.

1. In Harris v TSS Pty Ltd and Sun Alliance Insurance Group Ltd (supra), the worker was incapacitated by injury in the course of her employment with the respondent. She was paid weekly compensation but returned to work. She later resigned, but suffered a recurrence of her incapacity due to that injury and sought further weekly payments. The primary issue was whether this was a fresh claim attracting the requirements of the Act, s32, which provides:

   "32 ¾ (1)       Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless ¾

   (a)notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and

   (b)a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death."

   Underwood J held that the claim for compensation for the purposes of this section was the initial claim.

1. In Chorley v Hazel Pty Ltd (supra), the issue was whether or not the worker, after lawful termination of his weekly payments consequent upon a return to work and who was not paid further weekly payments after a recurrence of his incapacity, could refer the issue of his further entitlement to them under s42. Zeeman J held that the extended definition of a claim as including "any matter or question arising in connection with or incidental to such a claim" could be applied to a claim referred under s42. He said, however, that to apply the extended definition to s81 when it speaks of the "receipt of a claim for compensation" would be "a nonsense" (at 2).

1. With respect, I see no inconsistency with the reasoning in the above cases in treating a claim for further payments after the lawful cessation of payments due to the absence of the requisite certificate as a claim for compensation within the meaning of s81.  True, to regard it as being such a claim only by virtue of its being, on one view, "a matter or question arising in connection with or incidental to" some earlier claim, does not sit easily with the concept of its being received by the employer.  But as pointed out by Zeeman J in Chorley v Hazel Pty Ltd (supra) at 2 when speaking of the definition of "claim for compensation" appearing in s3(1):

"The actual meaning of that expression as it appears in various sections of the Act depends upon the context. Section 32 provides for the making of 'a claim for compensation' as a pre-condition for an entitlement to be paid compensation at all. Such a claim for compensation must conform to the requirements prescribed by s34(1). The reference in s32 is to be taken as being a reference to a claim for compensation under the Act and not to 'any matter or question arising in connection with or incidental to such a claim'."

He then went on to say that this extended meaning could not be applied to a claim within the meaning of s81.

1. In Jones v Jones (1996) 6 Tas R 273, Zeeman J reaffirmed the above observations he had made in Chorley v Hazel Pty Ltd and went on to hold that:

"In respect of any particular compensable injury suffered by a worker, there may be a number of separate claims for compensation within the definition." (281)

He identified two such claims in that case, namely the initial claim consequent upon certified incapacity and the reference by the worker of the employer's notice of intention to terminate those payments under s86. The Full Court accepted this line of reasoning in Swetnam Brothers Pty Ltd v Grundy 9/1998.

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

1. On presentation of such claims, the employer has the option of a referral to the Tribunal or of acceptance of liability.  Some observations in previous cases about the finality of an acceptance of liability may have overstated the position or may have been perceived to have stated a position that for all purposes liability is accepted.  That is not the case, as Freemasons Homes of Southern Tasmania v Greenwood (supra) makes clear. An employer "still has the right to seek relief for payment under ss81A(5), 86 or 88 and may, on such an application, challenge the worker's right to payment" (at 450). But in any event, in my view, a failure to dispute liability under ss81AA or 81A does not result in the employer being taken to have accepted liability in respect of every claim for compensation, as s81AB may superficially suggest. As Zeeman J pointed out in Freemasons Homes of Southern Tasmania v Greenwood (supra) at 455 - 456:

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

2. The obligation to make such payments imposed by s81(1) is relieved in s81(3) if the employer defers a decision "to accept or dispute liability to pay compensation by way of weekly payments or other benefits" in accordance with s81AA or disputes that same liability in accordance with s81A(1). Both these sections expressly provide a means of disputing liability to pay compensation by way of weekly payments or other benefits and are silent in respect of liability to pay compensation by way of lump sums for particular maims. When s81AB speaks of the consequence of a failure to dispute liability to pay compensation in accordance with ss81AA or 81A, it is speaking necessarily of those claims which are susceptible of dispute under the last-mentioned sections, namely claims which in their terms assert either some incapacity or the incurring of an expense for which a benefit is provided. Hence the deeming part of s81AB which says that failure to dispute liability to pay compensation results in the employer being taken to have accepted liability "in respect of that claim" can only result in liability attaching in respect of the claim in fact made, whether it be for weekly payments or benefits or both. A new claim, whether it be for weekly payments where an initial claim for benefits only has been made (or vice versa), or for weekly payments where earlier payments have been lawfully terminated under s86, or have lawfully ceased due to the expiry of a medical certificate and the absence of a fresh one, is not one in respect of which the employer is taken to have accepted liability because he failed to refer some earlier claim in accordance with ss81AA or 81A. On the other hand, a referral under s42 or s86(4) of a purported termination, not being a new claim but rather a matter or question arising in connection with or incidental to an earlier claim, should not be regarded as a claim for compensation under s81, failure to dispute which within fourteen days has the consequence that the merits of the matter referred cannot be canvassed before the Tribunal.

1. In this case, the employer failed to avail itself of the right of referral and accordingly its liability to make these payments was concluded.  In accordance with the decision in Freemasons Homes of Southern Tasmania v Greenwood (supra) at 450, the only issue on the worker's reference was whether the employer had received a claim for payment of weekly compensation in relation to an injury to a worker employed by it. It was not open to the Tribunal to embark upon the assessment of a lower rate of weekly payments (Viney v Roney Management Pty Ltd (supra) at 243; Gulf Industries Pty Ltd v Barnett (supra) at 154).

1. Accordingly, although for different reasons than those adopted by the learned primary judge, I am of the view that his orders were appropriate and that this appeal should be dismissed.

   File No FCA 67/1998

G L & V N BARBER PTY LTD v PETER VERNIE RYAN

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
5 February 1999

1. Stripped of much of the detail the relevant facts are as follows.  The respondent was injured at work and his employer, the appellant, accepted his claim for weekly payments under the Workers Rehabilitation and Compensation Act 1988. On 11 November 1995 the appellant unlawfully terminated the making of weekly payments and on 17 July 1996 the Commissioner determined that to be so and ordered that the weekly payments resume. At that time the appellant had received from the respondent medical certificates which certified that the respondent was incapacitated for work until 16 November 1995. The appellant therefore paid weekly compensation in accordance with that certification. Shortly after that, on 30 July 1996, the respondent provided the appellant with a further medical certificate dated 24 July 1996, which certified that the respondent was totally incapacitated from 16 November 1995 to 24 August 1996. The appellant refused to make further weekly payments. It did not refer the matter to the Tribunal. It simply refused to pay. As a result the respondent referred the matter to the Tribunal pursuant to the Act, s42, seeking an order that the appellant pay weekly compensation to him from 16 November 1995.

1. The Commissioner determined that the appellant was liable to make payments of weekly compensation for the period since 16 November 1995, and that the break in the continuity of weekly payments did not amount to a lawful termination of weekly payments so as to cast the onus of proving ongoing incapacity back upon the respondent worker.  The Commissioner held that he was bound by what was said in Viney v Roney Management Pty Ltd (1996) 6 Tas R 240 at 245, that if a worker fails to present a medical certificate in respect of a particular period the employer is not obliged to pay any weekly payment in respect of that period, but the withholding of a payment does not amount to a termination of the weekly payment. All that occurs, according to Viney's case, is that the obligation to make the actual payment is left in abeyance until such time as the relevant certificate is presented.

1. The Commissioner rejected a submission on behalf of the appellant that the break in continuity of weekly payments and the appellant's compliance with the order that it resume the making of weekly payments established that the case was no longer one of unlawful termination of payments, but was one of a lawful termination of payments followed by a fresh claim by the worker for weekly compensation for the additional period of time covered by the fresh medical certificate.  It was held by the Commissioner that once there is a liability in an employer to make weekly payments, the right of the worker to receive the weekly payments is dependent upon the supply by the worker of supporting medical certificates (Pasminco Australia Ltd v Symmons A50/1993), but there is no prohibition of medical certificates lodged after the period in question or backdated in effect (Muir v Dance (1997) 7 Tas R 1). It was further held that upon receipt of those medical certificates there is an ongoing liability to make weekly payments at the rate which was last being paid and further payments may only be terminated or reduced in accordance with an application by the employer to the Tribunal under ss86, 81A(5) or 88 (Chorley v Hazell Pty Ltd A17/1993; Freemasons Homes of Southern Tasmania v Greenwood (1996) 5 Tas R 445; Viney v Roney Management Pty Ltd (supra); Gulf Industries Pty Ltd v Barnett (1996) 6 Tas R 142).

1. An appeal from the Tribunal was brought by the appellant to Evans J, who upheld the conclusions of the Commissioner to which I have referred.  The appellant has in turn come to this Court.  Before the Tribunal, Evans J and this Court, the essence of the appellant's argument was that because of the lateness of the supply of the medical certificate, the appellant lawfully terminated the payment of weekly compensation, following which the respondent made what must be regarded as a fresh claim for weekly compensation with respect to the period from 16 November 1995.  The appellant was entitled, so it was argued, to dispute the respondent's entitlement asserted by the fresh claim. 

1. If the appellant's argument is correct, and for the purpose of resolving this appeal it is sufficient to assume that it is, it must nevertheless follow that the appeal should be dismissed. Upon receipt of the new claim the appellant was obliged by s81(1) to commence making weekly payments within the time prescribed, unless the case fell within subs(3), which provides that subs(1) does not apply to an employer who either, in accordance with s81A(1), disputes liability to make weekly payments, or, in accordance with s81AA, defers making a decision to accept or dispute liability to make weekly payments. Notwithstanding that as a matter of fact the appellant may have disputed its liability to pay, it did not do so as a matter of law. That is because, by s81A(1), an employer who disputes liability to make weekly payments must do two things within fourteen days of receiving the claim from the worker. Those two things are first, the service on the worker of a written notice that the employer disputes liability and, second, the referral of the matter to the Tribunal. There is no evidence before this Court that the first of those matters was done, although the appellant's counsel informed the Court that liability was denied in writing. Even assuming that the first requirement of s81A(1) was satisfied, there is no suggestion that the same can be said about the second requirement, for the appellant referred nothing to the Tribunal. The case came before the Tribunal, not because the appellant referred it, but because the respondent did so consequent upon the failure of the appellant to make the weekly payments.

1. Of course, it is provided by s81A(5) that notwithstanding the failure to dispute liability under s81A(1) (or s81AA(3) following a deferral of the question), an employer who wishes to dispute liability to continue to pay compensation by way of weekly payments may, at any later time, refer the matter to the Tribunal, but the appellant did not do that either.

1. It follows from what I have said that the appellant is to be taken as having accepted liability in respect of the respondent's claim to weekly payments because of s81AB.  It provides that 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 ss81AA or 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim.

1. Assuming therefore that the appellant's basic argument is correct, that is to say that the claim for further payments of weekly compensation is to be regarded as a new claim, s81AB applies and the appellant must be taken to have accepted liability in respect of the claim because of its failure to dispute that liability in accordance with the Act.

1. For these reasons I would dismiss the appeal.

   
   File No FCA 67/1998

G L & V N BARBER PTY LTD v PETER VERNIE RYAN

REASONS FOR JUDGMENT   FULL COURT

SLICER J
5 February 1999

1. I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice and agree with his conclusion.  It is not necessary to give detailed consideration to any difference in reasoning expressed in his judgment from that adopted by the learned primary judge, since their conclusions are the same.  Any difference represents the tension of a legislative scheme dependent upon certification.  However, resolution of that tension can be achieved once it is accepted that the Workers Rehabilitation and Compensation Act 1988 ("the Act"), provides for a number of claims either by reference to chronology or basis of entitlement. In this case, the appellant employer had not been obliged to pay compensation between 16 November 1995 and 30 July 1996, since the respondent had not provided a certificate of incapacity during that period (Viney v Roney Management Pty Ltd (1996) 6 Tas R 240; Muir v Dance 11/1997), although the absence of certification did not necessarily mean a cessation of obligation. As the learned primary judge concluded (87/1998 at 5):

"The section expressly confines the circumstances in which a worker's weekly payments can be terminated to those detailed in the section or a determination of the Tribunal. The circumstances do not include the non-delivery of an appropriate certificate of the worker's disability pursuant to the s69(1) of the Act. That this omission may expose an employer who receives a retrospective certificate of disability to injustice does not justify disregarding the clear effect of s86."

1. Irrespective of whether there is a primary obligation (ie, one dependent on the acceptance by the employer that there had occurred a compensable injury) the presentation of further certification constitutes a further claim (ie, one dependent on a continuing nexus between the original occurrence and the condition of the worker during the relevant period of the claim).  In such a case, the employer is entitled to make a further objection to the claim as presented.  In some cases, the employer is not entitled to refuse to meet its obligations in relation to the primary claim (Harris v TSS Pty Ltd and Sun Alliance Insurance Group Ltd A46/1992; Chorley v Hazell Pty Ltd and Mercantile Mutual Insurance Ltd A17/1993), whilst in others (depending on their nature and the issues raised by them), the status of the parties alters because of the making of a fresh claim. In this case, the employer failed to seek referral and the issue of its obligation had been concluded. The issue before the Tribunal was, absent referral pursuant to the Act, s88, whether the employer was obliged to resume paying weekly payments. In cases where an employer ceases making a weekly payment because no medical certificate has been provided, the obligation to pay compensation is left in abeyance until there is a further occurrence which includes the presentation of a certificate of incapacity.

1. In my opinion the appeal ought be dismissed.