Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW

In *Hochbaum v RSM Building Services Pty Ltd* and *Whitton v Technical and Further Education Commission t/as TAFE NSW*, the New South Wales Court of Appeal considered the entitlement of injured workers to receive weekly payments of compensation during the period between the discontinuation of payments by their employer and the resumption of payments following an assessment by an approved medical specialist. The central dispute revolved around the interpretation of section 39 of the *Workers Compensation Act 1987* (NSW).

The primary legal issue before the Court of Appeal was whether section 39 of the Act entitled the appellants to receive weekly compensation payments during the period when their payments had been discontinued by the employer, but before a formal assessment by an approved medical specialist had been completed and payments were subsequently resumed. This required the court to determine the precise scope and effect of section 39 in circumstances where an employer had ceased payments pending a medical assessment.

The Court of Appeal reasoned that section 39 of the Act, which deals with the discontinuation of weekly payments, contemplates a situation where an employer may cease payments if they have obtained a medical certificate from an approved medical specialist stating that the worker is not totally or permanently incapacitated. However, the section also provides for the resumption of payments if the worker subsequently obtains a contrary assessment from another approved medical specialist. The court held that the section did not create an entitlement to payments during the interim period between discontinuation and a subsequent assessment, particularly where the employer had acted in accordance with the provisions allowing for discontinuation based on a medical certificate.

In *Hochbaum*, the Court of Appeal set aside the orders of the President of the Workers Compensation Commission, dismissed the appeal from the Senior Arbitrator's decision, and reinstated the Senior Arbitrator's Certificate of Determination dated 7 January 2019, with no order as to costs. In *Whitton*, similar orders were made, setting aside the President's orders, dismissing the appeal from the Senior Arbitrator, and reinstating the Senior Arbitrator's Certificate of Determination dated 7 January 2019, with the respondent ordered to pay the appellant's costs.