Haines v Alfred Health
[2019] VMC 9
•26 September 2019
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION OF COURT
K10904059
| CARMEN HAINES | Plaintiff |
| V | |
| ALFRED HEALTH | Defendant |
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MAGISTRATE: | B. WRIGHT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 September 2019 |
DATE OF DECISION: | 26 September 2019 |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | Haines v Alfred Health [2019] VMC009 |
REASONS FOR DECISION
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CATCHWORDS - Workers Compensation – Weekly Payments – Admitted Work-Related Injury – Medical Certificates of Capacity Provided Beyond 90 Days – Whether Decision Not To Pay Weekly Payments Can Be Set Aside – Workplace Injury Rehabilitation and Compensation Act 2013 ss. 167(4) (5)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. S. Dawson | Rubicon Compensation Lawyers |
| For the Defendant | Mr. D. Churilov | IDP Lawyers |
HIS HONOUR:
1 Ms Haines is a doctor who was employed at Alfred Health from January 2015 to 16 February 2018. Her claim form pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), dated 5 October 2018, for a work related injury was accepted by the authorised insurer Allianz on 8 November 2018.
2 She claimed her injury, including the aggravation and acceleration of her bipolar disorder, occurred because of excessive workload and performing unqualified duties. She is currently in receipt of weekly payments for that injury. However, she has not received weekly payments from the commencement of incapacity on 21 February 2018 to 6 September 2018 (“the relevant period”).
3 Pursuant to a notice dated 3 January 2019 Allianz, the authorised agent, noted that on 5 December 2018 they had received medical certificates of capacity covering the relevant period. As all of those medical certificates related to a period of time beyond a period of 90 days of the date of provision of those certificates, they were regarded as being of no effect, that is pursuant to s.167(4) of the WIRC Act.
4 Ms Haines now seeks weekly payments be paid for the relevant period pursuant to the general provisions of the WIRC Act and s.167(5) of that Act as well.
5 No viva voce medical or lay evidence was called. The only evidence tendered was the relevant claim form, medical certificates and two notices issued by Allianz.
6 There were six medical certificates issued by Dr Kanouar on 30 November 2018 that were referred to in the 3 January 2019 notice. They certify “no current work capacity” between 21 February 2018 and 14 September 2018, albeit with some gaps in that period, though there may be missing medical certificates of capacity in respect of that period which are not before me. The certificates refer to seven medical consultations over the relevant period in dispute. I had no other material at all from that doctor, or any other doctors, as I have already noted.
7 In addition, there is a medical certificate from a Dr Fraser dated 3 October 2018 certifying “no current work capacity” from that date to 3 January 2019. I was told that certificate was given at the time of the claim form and apparently used by Allianz to justify paying weekly payments from about that date. As I have stated, I understand that weekly payments have continued to be paid.
8 Importantly, at the start of these proceedings before me the defendant admitted the allegations in paragraph 10 of the statement of claim rather than “do not” admitting those allegations. Thus, the defendant now formally admits paragraph 10 as follows:
'The Plaintiff was incapacitated from performing her pre-injury employment duties in the period of time (that is the relevant period) with such incapacity resulting from and being materially contributed to by the injuries.'
9 It is little surprising to me that despite this formal blanket admission as to the relevant period, the receipt of medical certificates over the relevant period and the fact that she was examined seven times by that medical practitioner in that period as well, that Allianz, acting for the model litigant, has refused to pay those weekly payments to Ms Haines.
10 In a nutshell the defendant says that there is a difference between entitlement to weekly payments and the actual requirement to pay those weekly payments. It refers to ss.167(4) and (5) of the WIRC Act. In short, it says the medical certificates are of no effect as they relate to periods of time more than 90 days from the date upon which they were provided.
11 I accept that there is a distinction between entitlement to weekly payments and the right to actually receive weekly payments. For example, if a worker is receiving non-refundable sick pay from an employer and at the same time is entitled to receipt of weekly payments of compensation, those weekly payments may not be paid.
12 Because of that time defect, Allianz submits it is not required to pay weekly payments. It submits that s.167(5) does not assist Ms Haines despite its formal admission of work-related injury and incapacity for the whole of the relevant period. As the Allianz notice of 3 January 2019 was not a formal rejection of a claim for weekly payments, it submits that any decision of this court cannot be seen as the setting aside of any rejection of such a claim for weekly payments. Basically, it says that Ms Haines' entitlement to weekly payments is not payable and sits in abeyance, which may in fact be permanent. It says s.167(5) is a separate provision to, and is independent of, s.167(4).
13 The equivalent of s.167(5) in the WIRC Act is s.111(1A) in the Accident Compensation Act 1985 which was introduced separately by the Accident Compensation Amendment Act 2005, whereas the equivalent of s.167(4), being s.111(4) of the Accident Compensation Act had been inserted into the Act as far back as 1989. The defendant says that s.111(1A) of the Accident Compensation Act, and its equivalent s.167 of the WIRC Act, was the codification of the judgment in Williams v Mullins Wheels [2004] VCC 1, a decision of His Honour Judge Coish of the County Court of Victoria.
14 Despite the lack of any specific reference to that case in the explanatory memorandum and the second reading speeches to the 2005 amending Act, I accept that the amendment was placed into that Act because of at least one of the problems highlighted in the Williams v Mullins Wheels decision.
15 It says that Williams v Mullins Wheels was a much different case factually. Those proceedings arose out of a 104 week termination of weekly payments in which the worker had only provided one medical certificate between the date of the termination of those payments and the hearing of those proceedings.
16 His Honour, after considering the case on the merits, determined that the worker had a work-related incapacity for work despite the non-provision of medical certificates of capacity over almost all the period of arrears. He said there was no obligation on a worker to continue to provide medical certificates over a period in which those payments were terminated.
17 At para. 54 of the decision in Williams v Mullins Wheels he stated,
'In the absence of an express provision which specifies either an obligation on the plaintiff to provide certificates of capacity in respect of the period in which the plaintiff alleges an entitlement to weekly payments, or specifies a disentitlement to the recovery of arrears of weekly payments of compensation in the absence of contemporaneous certificates of capacity I do not accept the submissions made on the behalf of the defendant that the plaintiff has not qualified himself to obtain weekly payments of compensation during the periods he did not receive certificates of incapacity. I am satisfied the plaintiff is entitled to an order for reinstatement of weekly payments of compensation from the date of termination to date and continue in accordance with law.'
18 Counsel for the defendant also referred to a decision of John Dixon J in Cetel Communications v Parker[2014] VSC 318 which was really only relevant to the termination of an entitlement to weekly payments where the worker was not in actual receipt of weekly payments in the circumstances involving the equivalent of the present s.185 of the WIRC Act.
19 He also referred in passing to my decision in Casey v Direct Skills (2012) VMC 4, but did not address me in any detail in relation to that case. I will go into that case again later.
20 Counsel for Ms Haines submitted that in view of the defendant's formal admission of a work-related injury and resultant incapacity for the relevant period, there was no need to call evidence and these proceedings should be decided in favour of Ms Haines on the papers.
21 Further, he submitted that despite the heading of the notice of 3 January 2019 that that notice was in fact a rejection of a claim for weekly payments for the relevant period. Thus, s.167(5) was relevant and the court had jurisdiction and power to set aside that notice. He submitted that there was a link between s.167(5) and s.167(4) as the former provision refers to s.167(1) and s.167(4) is also tied up with s.167(1). He emphasised that the WIRC Act is beneficial legislation and where two constructions are possible, that which is favourable to a worker should be preferred.
22 I now proceed to make my decision.
23 As stated, counsel for the defendant referred to my decision in Caseyin which he said I set out a history of the legislative provisions and case law relating to the need for the supply of medical certificates of capacity under workers compensation legislation, mainly going back to 1987 and even raising the issue under the Workers Compensation Act 1958. I see no need to repeat those matters.
24 Otherwise, I was not addressed as to my decision and have no reason to alter my expressed views in that decision. In a number of ways the facts in Casey are similar to the facts in the present situation.
25 The dispute in that case involved a period of about 12 weeks where the worker had not been paid weekly payments because of the lack of medical certificates relating to a period of less than 90 days from the date of provision of those certificates. The worker was paid weekly payments both before and after that 12 week period. In that case the authorised agent had issued a notice advising that his 'claim for back dated payments have been denied' (sic.) for the 12 week period as they related to a period of time of more than 90 days prior to the certificate receipt date. In that decision, I determined that there was a clear decision of the authorised agent to terminate weekly payments for a specified period.
26 In Casey, I stated at paras. 37-38 in relation to a similar codification argument raised by counsel in this case as to s.111(1A), which of course is now s.167(5), in these terms.
‘[37] Although s.111(1A) was a legislative reflection of Judge Coish's judgment in Williams, this does not mean that its only reference and application is in cases where weekly payments have been rejected or are otherwise terminated on a continuing basis.
[38] It seems to me that if there is a decision or a notice not to pay weekly payments because of s.111(4), a worker would be entitled to issue proceedings and have a court determine whether there was in fact work related incapacity for work during the relevant period. If a court did determine that there was such work related incapacity then s.111(4) would come into play and lead to the making of weekly payments without the need to provide medical certificates for the relevant period.'
27 I also referred to the beneficial legislation argument and the objects of the Act in paras. 40 and 41 of that decision, which I see no need to repeat.
28 I then went on to state at paras. 42 and 44 of the Casey decision:-.
‘[42] At the start of this decision I referred to two extreme examples. The ruling that s.111(1) is mandatory but allowing a worker to establish work related incapacity on merits despite lack of appropriate medical certificates addresses those two extreme factual situation.
[43] Thus a worker suffering a minor injury does not receive continuing weekly payments without the provision of continuing certificates of incapacity. Alternatively a worker with a work related quadriplegia is not deprived of weekly payments if for reasons beyond control certificates of capacity are provided inside the 90 day period.'
29 Ultimately, I determined that a court could proceed to consider the issue of entitlement to, and the payment of weekly payments for, the disputed period on the merits whether or not there was a formal notice of rejection or termination of weekly payments.
30 In any event, despite the lack of the words ‘rejection’ or ‘termination’ in the heading of the notice in this case, I find that there was at least an implied notice of rejection of weekly payments for the relevant period payable to Ms Haines in this case for the reasons I have set out and as I discussed in Casey.
31 Thus, I find that this court has the power to order weekly payments for the relevant period on the merits, now or in the future. Normally, this would be done by calling medical and lay evidence.
32 However, as I have stated the defendant in its amended defence has formally admitted the work-related injuries and consequential incapacity for work in the relevant period. In the view of this blanket admission there is nothing effectively of relevance for the court to determine at this stage, save possibly for the quantification in respect of which liberty to apply would be appropriate. Any lay or medical evidence could not take the matter any further beyond the admission.
33 The situation is similar to that for an application for summary judgment pursuant to the Civil Procedure Act 2010 s.61.
34 Thus, for the reasons I have outlined, Ms Haines is entitled to weekly payments from 21 February 2018 to 6 September 2018, amounts reserved, with liberty to apply.
(After further submissions interest on outstanding weekly payments was also ordered pursuant to s. 193(1)(b) of the Act.)
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