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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] TASSC 5
Decision Date: 5 February 1999

CaseChat Overview and Summary

G L & V N Barber Pty Ltd (the employer) appealed against a decision of Evans J, who had dismissed the employer's appeal against a decision of a Workers Compensation Commissioner (the Commissioner). The worker had been injured in February 1995 and the employer had made weekly payments of compensation to him on the basis of total incapacity. The employer had not disputed liability to make the payments when it received the initial claim. On 11 November 1995, the employer, relying on a medical practitioner's certificate, purported to terminate the payment of weekly payments. The worker referred the termination to the Commissioner, who found that the certificate upon which the employer relied did not satisfy the requirements of the Workers Rehabilitation and Compensation Act 1988 (the Act) and ordered that the employer reinstate the weekly payments to the worker in accordance with the Act from the date of the purported termination. 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 Commissioner under the Act, seeking an order that the employer pay him weekly payments of $770.27 gross from 16 November 1995. The Commissioner 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 Commissioner 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. The Full Court dismissed the employer's appeal. In doing so, it concluded that the presentation of a fresh certificate of incapacity after a break in the continuity of certification to that effect amounted to a claim for compensation within the meaning of the Act, which attracted the provisions of s81 et seq. The employer, upon receiving the claim, again had the right to dispute the worker's entitlement to payment, but only if it made up its mind to do so promptly and referred the matter to the Tribunal. If it failed to do so, then it would be taken to have admitted its liability in respect of that claim and if the worker, to enforce his right to receive the payment, referred the matter to the Tribunal under s42, the only issue before the Tribunal would be whether the worker had established the preconditions to payment prescribed by s81(1), namely that the employer had received a claim for compensation accompanied by a medical certificate in an approved form and that the claim was in relation to an injury to a worker employed by the employer. The employer in this case had 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 [1996] TASSC 1, 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 Commissioner to embark upon the assessment of a lower rate of weekly payments. Accordingly, although for different reasons than those adopted by the learned primary judge, the Full Court was of the view that his orders were appropriate and that this appeal should be dismissed.

Orders