Integratedliving Australia Ltd v Hodgetts

[2017] TASSC 78

[2017] TASSC 78

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Integratedliving Australia Ltd v Hodgetts [2017] TASSC 78

PARTIES:  INTEGRATEDLIVING AUSTRALIA LTD
  v
  HODGETTS, Danielle

FILE NO:  2299/2017
JUDGMENT

APPEALED FROM:  Integratedliving Australia Ltd v H [2017] TASWRCT 24

DELIVERED ON:  21 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  4 December 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Workers' Compensation – Determination of claims – Jurisdiction of courts, tribunals, commissions and boards – Workers Rehabilitation and Compensation Tribunal (Tas) – Benefits payable – Medical certificate after gap in certification – Right of employer to treat certificate as claim for compensation  – Whether employer may dispute continuing liability to pay benefits.

Aust Dig Workers' Compensation [305]

REPRESENTATION:

Counsel:
             Appellant:  I Hallett
             Respondent:  No appearance
             Attorney-General:  D Osz
Solicitors:
             Appellant:  Page Seager
             Attorney-General:  Solicitor-General

Judgment Number:  [2017] TASSC 78
Number of paragraphs:  31

Serial No 78/2017
File No 2299/2017

INTEGRATEDLIVING AUSTRALIA LTD v DANIELLE HODGETTS

REASONS FOR JUDGMENT  GEASON J

21 December 2017

1. The appellant urges four grounds of appeal upon the Court by way of challenge to a decision of the Workers Rehabilitation and Compensation Tribunal (the Tribunal) constituted by Commissioner Wilkins: Integratedliving Australia Ltd v H [2017] TASWRCT 24. 

2. By its notice of appeal it submits that in respect of the reference numbered W/2017/467, a reasonably arguable case existed concerning the respondent's claim for compensation in accordance with s 69(13) of the Workers Rehabilitation and Compensation Act 1988 (the Act). It contends that not only is it not liable to pay compensation by way of weekly payments to the respondent, in accordance with s 81A(3)(c) of the Act, but that it was also entitled to an order to the effect that it was not liable to pay the cost of any benefits payable under Div 2 of Pt VI of the Act in respect of the injury, in accordance with s 81A(3)(d). The learned commissioner concluded that she did not have jurisdiction to make an order under s 81A(3)(d) in respect of the referral, and that instead, s 77AA provides the mechanism whereby an employer who contests liability to pay claims for expenses under Pt 2 of Div VI of the Act may do so. Accordingly, she refused to make orders in accordance with a consent memorandum which had been filed by the parties.

3. The respondent did not participate in the appeal. The Attorney-General appeared as amicus curiae and made submissions in favour of the construction of the Act adopted by the learned commissioner. 

4. The four grounds of appeal advanced are:

   "1The Tribunal erred in law in that it failed to make a determination and order in accordance with s81A(3)(d) of the Act [27] when it was required to do so pursuant to the Reference.

   2The Tribunal erred in law in that it determined that the Appellant could only use s77AA of the Act to dispute the Respondent's entitlement to an expense under Division 2 of Part VI of the Act [26-27] notwithstanding that the Appellant had enlivened the jurisdiction of the Tribunal under s 81A of the Act to make a determination and order under s81A(3)(d) of the Act.

   3The Tribunal erred in law in that it determined that a reference to it under s81A of the Act by reason of a jurisdiction invoked under s69(13) of the Act did not authorise it to consider an application for a determination and order in accordance with s81A(3)(d) of the Act [27] when there was no lawful authority for it to do so.

   4The Tribunal erred in law in determining that the insertion of s77AA into the Act by reason of the Workers Rehabilitation and Compensation Amendment Act 2000 meant that Parliament had intended to s77AA of the Act was the exclusive means of an employer disputing a liability for an expense under Division 2 of Part VI of the Act subsequent to the operation of s81AB of the Act and that s69(13) of the Act introduced by the same amending Act could only be used to invoke a jurisdiction in the Tribunal under s81A(3)(c) [25] when the clear words of s69(13) and s81A(1)(a)(ii) and s81A(3)(d) required the Tribunal to do so."

5. The issue before the Court is whether or not the commissioner's construction of s 69(13) by reference to ss 77AA and 81A is correct.

Background

1. The respondent was employed by the appellant.  On 16 November 2016 she made a claim for compensation in respect of an injury suffered on 14 November 2016 and said to have occurred while showering a client.  She claimed that upon bending over she felt a pinch in the buttock, and that  numbness developed later that day, with pins and needles in her foot and leg. An initial workers compensation medical certificate provided a provisional diagnosis of lumbar sprain with radiculopathy, and certified the respondent fit for suitable duties for the period 16 November to 29 November 2016.  Liability for the claim was accepted, and compensation payments were made by the appellant to the respondent.  Continuing workers compensation medical certificates were provided by the respondent for the period 17 November 2016 to 13 May 2017, the last of which was dated 12 April 2017.  A further Continuing Workers Compensation Medical Certificate dated 27 April 2017 was provided indicating that the respondent would cease to be incapacitated for work on 27 April 2017.  The certificate noted that she was unable to work due to issues not associated with her work injury.

2. Another Continuing Workers Compensation Medical Certificate dated 2 June 2017 was provided and certified incapacity for work from 14 May to 14 July 2017 arising from the work injury. 

3. It was the appellant's contention that this certificate was delivered more than 14 days after the expiration of the period of incapacity specified in the certificate dated 12 April 2017. In those circumstances it relies on s 69(13) of the Act to invoke s 81A of the Act.

4. Section 69(13) of the Act provides 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."

5. Section 81A of the Act provides:

   "(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)       …

   (2AA)  …

   (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)     …

   (2C)     …

   (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 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)       ..."

6. On 6 June 2017 the appellant made a referral under s 81A to the Tribunal.  By an application dated 19 June 2017, the respondent sought orders by consent in accordance with s 81A(3)(c) and (d) of the Act.  The learned commissioner delivered her reasons for decision on 27 July 2017.  She held (inter alia):

   "22 A workers compensation medical certificate that certifies only as to the need for particular medical or other treatment, but not the existence of an incapacity, is insufficient to enliven s69(13) to enable the employer to dispute the claim. It follows that s 69(13) cannot be used by an employer to invoke s81A and seek only an order under s81A(3)(d) on the basis that there is no liability to pay benefits under Part 2 of Division VI of the Act where the certificate in question certifies only as to the need for treatment."

7. In her reasons for decision, the learned commissioner observed that s 77AA was inserted into the Act at the same time as s 69(13) was added. It had the effect that upon receipt of a claim for medical or related expenses under Div 2 of Pt VI of the Act, the employer was required within 28 days to either pay the claim or refer it to the Tribunal. She concluded that s 77AA provides the only mechanism whereby an employer who contests its liability to pay claims for expenses under Pt 2 of Div VI of the Act may do so upon notice to the worker and the treatment provider at any time. The basis of such dispute need not rely upon the nature or extent of the worker's incapacity, nor upon whether there has been any break in certification.

8. The learned commissioner's reasoning was premised on a distinction between certification as to the existence of an incapacity, and certification as to the need for continued treatment. She concluded that the first kind of certificate enlivened s 69(13) in respect of weekly payments of compensation, but the second kind does not.

9. It is the Attorney's contention that the construction of s 69(13) of the Act is to be understood by reference to three principal matters: first, its plain and ordinary meaning; second, the matter with which the section deals; and third, by reference to the kind of compensation the Division as a whole concerns.

10. It is submitted that upon consideration of those matters, s 69(13) of the Act, properly construed, is intended only to deal with compensation in the form of weekly payments. It is submitted that that is the only reasonable conclusion which the section, considered in its context, and as a whole, admits. The submissions goes as follows: the medical certificate provided by a worker under s 69 only deals with weekly payments. Section 69 is contained within Div 1 of Pt VI of the Act, which, according to its title, deals with "Basic Compensation Payable". That is its context.

11. Context is relevant to interpretation of statutory provisions and falls for consideration not at the point where ambiguity is discerned, but as part of the interpretative process: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47]; Awada v LinknarfLtd (In Liq) [2002] NSWSC 873, 55 NSWLR 745 at [10]-[11], per Barrett J.

12. The Attorney contrasts Div 1 of Pt VI, with Div 2 of Pt VI , within which s 77AA sits. It is submitted that it can be seen that while Div 1 deals exclusively with the issue of weekly payments and compensation for impairment (Basic Compensation Payable), Div 2 deals exclusively with compensation of an injured worker for "medical and other services". It is put that s 77AA applies in circumstances where the employer has accepted (or is taken to have accepted under s 81AB of the Act), liability to pay compensation under the Act for an injury to the worker. Section 77AA is limited in its application to liability for compensation in respect of medical expenses and not weekly payments. In Federal Hotels v Webb [2013] TASSC 36, 22 Tas R 283, Blow CJ said at [26] that s 77AA, after noting its similarities to s 81A:

    "It applies in relation to a claim by a worker for the payment of expenses. It requires the employer who receives such a claim to pay the expenses unless the employer serves the worker and the service provider with notices disputing the claim."

13. The appellant does not submit that that s 77AA is inapplicable, but told the Court that the practice was that s 77AA was invoked in circumstances where a particular invoice (or invoices) were disputed, but the liability to pay medical expenses was not.  For example, where a particular invoice related to services considered to be unrelated to the claim for compensation, the provision was invoked to dispute the obligation to make payment of the particular invoice, and provided a simple mechanism for corresponding with the claimant and the service provider, and placing the onus on the claimant to bring the expense within the claim for compensation.

14. This was to be contrasted, according to the appellant, from circumstances where the liability to pay medical expenses at all was disputed. In such circumstances, provided the requirements of s 69(13) were satisfied (that is more than 14 days had elapsed since the expiration of the period of incapacity specified in the last medical certificate), s 81A could be invoked and subs (3)(d) was applicable.

15. The appellant submits that there is nothing in the language of s 69(13) which limits the scope of the operation of s 81A to payment of compensation by way of weekly payments. It submits that the construction adopted by the learned commissioner renders otiose the provision of s 81A(3)(d). On its submission, the only matter determinative of the question of whether a subparagraph within s 81A(3) is invoked, is the factual circumstance disclosed by the medical certificate. Any of the provisions within s81A(3) can be invoked on the facts as there presented.

16. Neither party could refer the Court to a case where the operation of s 81A, when it is engaged via s 69(13) of the Act, had considered the question of the power of the commissioner to make orders with respect to weekly payments and benefits. Federal Hotels v Webb (above) was, on its facts, a case limited to the obligation to pay weekly payments. In that case, following a period of return to work and the cessation of weekly payments, the worker produced a medical certificate certifying that he was fit for suitable duties. The resumption of weekly payments was sought on the basis of partial incapacity. The issue which fell to be determined in that case was whether the provision in s 69(13), when the requisite gap in certification required by s 69(1) was present, permitted the employer to dispute liability to pay weekly payments only where the employer had disputed the initial liability or, also on the basis that the employer did not have a continuing duty to make weekly payments after the certificate was provided. Blow CJ held at [8] that, "It seems clear that the subsection was inserted for the benefit of employers who wished to be relieved of statutory obligations to make weekly payments without having to refer matters to the Tribunal pursuant to s42 …".

17. The Attorney-General extrapolates from this case the proposition that the purpose of regarding a certificate under s 69(13), which is intrinsically concerned with weekly payments, as a claim for compensation to which s 81A applies, is to enable the employer to dispute liability to pay weekly payments. Accordingly, where s 69(13) provides that an employer may treat a certificate as a claim for compensation to which s 81A applies, the section means compensation in the sense set out in s 69(1)(a)(i)-(ii). That is, compensation for weekly payments.

18. The appellant maintains that the decision in Federal Hotels v Webb (above) must be read on its facts.  The facts did not require a consideration of the question of whether s 81A(3)(d) was engaged. The appellant contends that in circumstances where the medical certificate of 2 June 2017 specified an incapacity for work, and also referred to ongoing medical treatment, that each of the powers contained within s 81A(3)(c) and (d) was available to the Tribunal and it had jurisdiction to make orders under both Parts. 

19. In Federal Hotels v Webb (above) Blow CJ held at [14] that s 69(13) permits the employer to treat a certificate as "a claim for compensation to which s 81A applies". As such, his Honour said, at [25], that s 69(13) when applicable, requires "medical certificates to be treated as something that they are not, namely claims for compensation in the s 80A sense" [emphasis added].  That is, as a matter falling within Pt 7, Div I of the Act. That Part relates to weekly payments and other benefits. 

20. The Court holds that once the matter is one falling within the scope of Pt 7, Div I of the Act, jurisdiction with respect to weekly payments and benefits is enlivened. Section 69(13) is merely the conduit through which one arrives at Pt 7, Div I. It is not determinative of the powers which are enlivened.

21. Accordingly, once s 69(13) had been engaged each of the powers appearing at s 81A(3)(c) and (d) was available to the Tribunal, subject only to the requirement that the factual circumstances gave rise to their engagement. In short, the Tribunal had jurisdiction to consider weekly payments and benefits as the parties had asked it to.

22. To construe the matter otherwise, would be to redefine "claim for compensation" in circumstances where s 69(13) is invoked, as something different from a claim for compensation under Pt 7. There is no warrant for that approach. A claim for compensation as defined in s 80A embraces both elements, namely weekly payments and benefits.

23. This  is consistent with Blow CJ's conclusion in Federal Hotels Ltd v Webb (above) expressed at [27] where it was held that:

    "Having regard to the wording, context and purpose of s69(13), I hold that its concluding words, 'may treat that certificate as a claim for compensation to which section 81A applies', should be construed as entitling an employer, when the subsection applies, to treat a fresh medical certificate as if it were a claim for compensation in the s80A sense for the purpose of disputing either its initial liability to make payments of compensation or a contention that, after the provision of the certificate, it has a duty to make such payments."

24. Nothing turns on the fact that there is overlap between the terms of s 77AA and s 81A(3)(d).  As was made clear by Blow CJ in Federal Hotels v Webb at [26]:

    "Section 77AA has similarities to s81A. It applies in relation to a claim by a worker for the payment of expenses. It requires the employer who receives such a claim to pay the expenses unless the employer serves the worker and the service provider with notices disputing the claim. Section 86, as I have said, empowers an employer to terminate or reduce weekly payments in certain defined circumstances. In my view there is nothing in any of these sections that has any bearing on the scope of s69(13) or the meaning of 'liability' in s81A(1)."

1. I agree. As such, referencing s 77AA for the purposes of interpreting s 69(13), and in turn the jurisdiction of the Tribunal under s 81A, is not helpful. Section 77AA does not have any bearing on the matter.

2. For these reasons, I uphold ground 1. These reason adequately traverse the contentions in other grounds, and for the same reasons I find grounds 2, 3 and 4 are made out.