Pearson v State of Tasmania

[2024] TASSC 41

[2024] TASSC 41

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Pearson v State of Tasmania [2024] TASSC 41
PARTIES:	PEARSON, Rosemary Joy
v
STATE OF TASMANIA
FILE NO:	2910/2023
DECISION
APPEALED FROM:	P v State of Tasmania (Department for Education, Children and Young People) [2023] TASCAT 174
DELIVERED ON:	3 September 2024
DELIVERED AT:	Hobart
HEARING DATE:	19 February 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Interim payments – Worker provided medical certificate and sought resumption of weekly payments after gap in certification – Employer elected to treat certificate as if an initial claim – Whether employer liable to resume weekly payments pending interim determination by tribunal.

Aust Dig Workers Compensation [303]

Legislation:

Workers Rehabilitation and Compensation Act 1988 (Tas), ss 69(1), (13), 81, 81A(3).

Cases cited:
Bird v Commonwealth (1988) 165 CLR 1
Christiansen v JW Simpson & Co Pty Ltd [1971] SASR 412
Vergis v Brownbuilt Limited (1973) 5 SASR 591
Viney v Roney Management Pty Ltd (1996) 6 Tas R 240
Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108
Williams v Norske Skog Papers Mills (Australia) Ltd [2003] TASSC 125

Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328

REPRESENTATION:

Counsel:

Appellant:	C Schokman
Respondent:	O Robinson

Solicitors:

Appellant:  Ogilvie Jennings

Respondent: Judgment Number: Number of paragraphs:	State Litigator
[2024] TASSC 41
22

Serial No 41/2024 File No 2910/2023

ROSEMARY JOY PEARSON v STATE OF TASMANIA

REASONS FOR JUDGMENT BLOW CJ
3 September 2024

[On 5 August 2024 Blow CJ made orders in this matter allowing the appeal, setting aside the decision appealed against, and ordering that the respondent pay to the appellant weekly payments of workers compensation in respect of the period from 14 June 2023 to 6 August 2023 inclusive. On 3 September 2024, after counsel for both parties made further submissions, his Honour made an order varying the order of 5 August 2024 so as to specify the period from 18 May 2023 to 12 July 2023 as the period in respect of which payments were to be made. His Honour published written reasons for his orders of 5 August 2024. The reasons below are a revised version of those reasons, and are reasons for making the orders as varied.]

1            This appeal concerns a dispute as to whether an employer is liable to pay a worker weekly payments of workers compensation in respect of a period from 18 May 2023 and 12 July 2023.

2             The worker in question is Rosemary Pearson, the appellant in these proceedings. Her employer is the respondent, the State of Tasmania. At all material times the worker was employed in the Department for Education, Children and Young People. The sequence of events to which this appeal relates can be summarised as follows:

• On 14 November 2022 the worker made a claim for workers compensation alleging that she became incapacitated for work as a result of "stress and exhaustion".

• The employer did not dispute the claim pursuant to s 81A of the Act. It was therefore taken to have accepted liability by virtue of s 81AB.

• The worker provided a series of medical certificates certifying her as totally incapacitated for work from the time of her claim until 18 May 2023.

• Her next medical certificate was dated 14 June 2023. The author of that certificate certified the worker as incapacitated for work from 18 May 2023 to 12 July 2023.

• Pursuant to s 69(13) of the Act, the employer elected to treat the medical certificate of 14 June 2023 as a claim for compensation to which s 81A of the Act applied, and referred the matter to the tribunal under s 81A.

• On 7 August 2023 the tribunal determined that the employer had a reasonably arguable case concerning liability to pay compensation by way of weekly payments, and made an order pursuant to s 81A(3)(c) of the Act that compensation was not to be paid by the employer.

• The employer had not made any payments of weekly compensation following the expiry of the medical certificate on 18 May 2023. A dispute arose as to whether it was then liable to make payments in respect of the period from that date until 12 July 2023, when the next medical certificate expired.

• Both parties made written submissions to the tribunal in relation to that dispute. On 3 October 2023 a Deputy President of the tribunal, Ms A Clues, made a decision that the employer was not liable to make weekly payments in respect of that period: P v State of Tasmania (Department for Education, Children and Young People) [2023] TASCAT 174.

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3             On 24 October 2023 the worker instituted this appeal from that decision. The right to appeal from such a decision is limited to questions of law: Tasmanian Civil and Administrative Tribunal Act 2020, s 136.

The legislation

4   The relevant provisions of the Act can be summarised as follows:

• If in any employment a worker suffers "an injury, which is a disease" and to which his or her employment contributed to a substantial degree, the worker's employer, subject to some exceptions, is liable to pay compensation in accordance with the Act to the worker: s 25(1)(b) and (c).

• By virtue of definitions in s 3, "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development" constitutes a "disease", and a disease constitutes an "injury".

• As a general rule, where total or partial incapacity for work results from an injury suffered by a worker, and "where the existence of such total or partial incapacity is supported by a certificate … signed by a medical practitioner", the worker is entitled to be paid weekly payments of compensation: s 69(1).

• When an employer receives a claim for compensation in relation to an injury to a worker, the employer is required to commence making weekly payments of compensation within 14 days or on the worker's next pay day: s 81(1).

• A failure to comply with s 81(1) is an offence punishable by a fine: s 81(2).

• The making of weekly payments pursuant to s 81(1) may not be construed as an admission of liability: s 81AA(1)(a).

• Within 84 days of receiving an initial claim for compensation, an employer may serve the worker with a written notice disputing liability, inform the worker of the reasons for disputing liability, and refer the matter to the tribunal: s 81A(1).

• If the tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay weekly payments, it must determine that compensation is not to be paid by the employer: s 81A(3)(c).

• Alternatively, if the tribunal considers that weekly payments should be made, it must order the employer to make weekly payments from such date as it determines: s 81A(3)(a).

• A determination under s 81A(3) operates as an interim determination. Either the worker or the employer may refer a question as to the worker's entitlement to weekly payments to the tribunal thereafter pursuant to s 42.

• If an employer receives a claim for compensation and does not dispute liability to pay compensation in accordance with s 81A, the employer is taken to have accepted liability in respect of that claim: s 81AB.

• Section 86 specifies several situations in which an employer may terminate weekly payments. An employer who terminates a weekly payment otherwise than in accordance with s 86 is guilty of an offence punishable by a fine: s 86(5).

• If the period specified by a medical certificate provided by a worker under s 69 expires, and the worker provides a further certificate more than 14 days after that expiry, the employer, on receipt

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of the subsequent certificate "may treat that certificate as a claim for compensation to which

section 81A applies": s 69(13).

• Section 81AA, which includes the provision precluding the making of weekly payments from being construed as an admission of liability, does not apply to a claim in respect of which s 69(13) applies: s 81AA(4).

• Section 80A defines the term "claim for compensation" for the purposes of Division 1 of Part VII of the Act (ss 80A to 92 inclusive) as "a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer". In simple terms, the defined term refers to an initial claim, as distinct from a claim for the resumption or continuation of compensation.

Gaps between medical certificates

5             There have been a number of cases in which judges of this Court have considered the question of an employer's liability to resume making weekly payments when a medical certificate has expired and there has been an interval before another medical certificate is provided. In Viney v Roney Management Pty Ltd (1996) 6 Tas R 240 at 245-246, Zeeman J said in relation to that situation:

"The withholding of a payment in such circumstances 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."

6   Cox CJ considered that situation in Williams v Norske Skog Papers Mills (Australia) Ltd

[2003] TASSC 125. The facts in that case were as follows:

• On 16 June 1998 the worker made a claim for compensation supported by a medical certificate.

• Medical certificates were provided and weekly payments were made in respect of a period ending on 31 October 2002.

• The worker presented a new medical certificate on 17 March 2003 and sought the resumption of weekly payments.

• After the time for referring the matter to the Workers Rehabilitation and Compensation Tribunal ("the WRCT") pursuant to ss 69(13) and 81A expired, the employer ceased making weekly payments and purported to refer the matter to that tribunal.

• The WRCT held that it had no jurisdiction because the referral had been made out of time. Cox CJ allowed an appeal from that decision, saying at [11]:

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"The injury is the same as that the subject of the 1998 claim. In those circumstances the obligation to pay compensation which had been in abeyance since 1 November 2002, revived pursuant to s 69(1) and there was no reason why the Chief Commissioner should not have ordered a resumption of payment."

8            Crawford J (as he then was) dealt with a much more complicated situation in Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108. The facts in that case were as follows:

• On 15 February 2000 the worker suffered a back injury. The next day she made a claim for compensation, supported by a medical certificate, and payments of weekly compensation commenced.

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• During October 2000 she was certified as fit to return to work and the employer ceased making weekly payments.

• On 9 May 2002 the worker presented a new medical certificate certifying incapacity and sought a resumption of weekly payments.

• On 29 May 2002 the employer treated the new medical certificate as a claim for compensation pursuant to s 69(13) and referred it to the WRCT pursuant to s 81A.

• Subsequently the employer discontinued that referral.

• On 9 August 2002, apparently after another gap in certification, the employer presented another medical certificate and again sought a resumption of weekly payments.

• On 19 August 2002 the employer referred that medical certificate to the WRCT pursuant to s 69(13) and s 81A.

• The employer subsequently discontinued that second s 69(13) referral.

• On 19 September 2002 the worker referred the question of her entitlement to weekly compensation to the WRCT.

• That tribunal considered, as a preliminary issue, whether the employer, by failing to pursue s 69(13) proceedings in respect of the 2002 medical certificates, was taken to have accepted liability by virtue of s 81AB. On that question, it made a determination in favour of the employer.

9 Crawford J held that the WRCT had not erred in its determination of the preliminary issue, but remitted the matter to the WRCT because it had not addressed one of the worker's contentions, namely that the liability to make weekly payments, after a period in abeyance, had been revived, resulting in her being entitled to receive weekly payments pursuant to s 69(1). His Honour said the following, at [21]:

"The Tribunal held that the appellant's claims for compensation that were represented by the 2002 medical certificates, were claims based on the injury suffered on 15 February 2000 and accordingly, the claims did not fall within the meaning of the expression 'a claim for compensation' as defined in s 80A for the purposes of Pt VII, Div 1. The Tribunal was correct and neither party challenged the point at the hearing of the appeal. Because the 2002 certificates were based on the injury that was suffered on 15 February 2000, they could not be said to be in respect of an injury for which the appellant had not previously made a claim for compensation, as s 80A required. The Tribunal then held, and correctly so too, that it followed that the 2002 claims for compensation were not claims for compensation for the purposes of Pt VII, Div 1. It followed in turn from that, and the Tribunal so held, that there was no obligation upon the respondent to comply with the statutory scheme set out in that Division, nor was the respondent to be taken, by virtue of s 81AB, to have accepted liability in respect of the claims, because they were not claims to which the section applied."

The tribunal's decision

10          In the decision now appealed against, after discussing the facts, the legislation, and the case law, the learned Deputy President said the following:

"[18] It is true that when an initial claim for compensation has been accepted or deemed to be accepted by an employer, weekly payments are held in abeyance during a gap in certification. However, when s 69(13) applies to a medical certificate, that medical certificate is treated as something that it is not. The plain wording states that it can be treated as a claim for compensation to which s 81A alone applies. It is not as a claim for

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compensation to which any of the other section in Pt VII Div I applies, that is;
ss 81, 81AA, 81AB, 818 and 83-90.

[19] It follows that s 81(1) does not apply to a s 69(13) claim and there is no liability to commence weekly payments upon such a claim. It further follows that 81AB does not apply and an employer is not taken to have accepted liability in respect of a s 69(13) claim. Therefore, on a s 69(13) claim there is no obligation on the employer to resume weekly payments pursuant to s 69(1)."

Contentions of the parties

11 The worker contends that the medical certificate of 14 June 2023, although the employer had the right to treat it as a claim for compensation to which s 81A applied, was still a medical certificate for the purposes of s 69(1); that her entitlement to compensation ceased to be in abeyance when that certificate was provided to the employer; and that she is therefore entitled to payments of weekly compensation for the period from the provision of that certificate to the determination of the tribunal.

12           The employer contends that the reasoning of the tribunal was correct. It also contends that s 81AA(1)(a) does not apply when s 69(13) applies; that a payment of compensation in respect of the period covered by the certificate dated 14 June 2023 would therefore amount to an admission of liability, and that the Act should therefore not be construed so as to require payments of weekly compensation to be made upon the presentation of a medical certificate to which s 69(13) applies.

Discussion

13 In my view it is important to remember that when a s 69(1) medical certificate expires, and there is an interval of more than 14 days before the provision of another medical certificate, (a) by virtue of s 81A(1) the employer has 84 days from the receipt of the new medical certificate to refer the matter to the tribunal, and (b) the employer might not refer the matter to the tribunal.

14           If the employer chooses not to refer the matter to the tribunal, then it is clear that the liability to make weekly payments revives when the new medical certificate is provided: Williams v Norske Skog (above).

15           What then is the situation when a medical certificate has been provided after an interval of more than 14 days, the 84-day limitation period has not expired, and the employer has neither elected to treat that certificate as a claim to which s 81A applied nor waived its right to do so? Is the worker entitled to weekly payments while time continues to run? Or must the worker wait 84 days and then receive a retrospective payment if, but only if, the employer does not refer the matter to the tribunal?

16           The latter situation would be absurd, contrary to the legislative intention underlying ss 81 and 81A, and contrary to the principle that workers compensation legislation, as beneficial legislation, ought to be construed in a manner favourable to workers: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v Commonwealth (1988) 165 CLR 1 at 9.

17 The learned Deputy President was correct when she said, at [19] that ss 81(1) and 81AB do not apply to a s 69(13) claim. However that is not the end of the matter. The provisions of s 69(1) apply in relation to the initial claim, and the liability to pay compensation pursuant to s 69(1) arises after a period in abeyance. Section 81AB applied to the initial claim in this case, and the employer's liability under s 69(1) was established by operation of s 81AB in relation to that initial claim.

18           I accept that s 81AA(1)(a) does not apply in relation to a s 69(13) claim. That is to say, the resumption of weekly payments after a gap in certification is not prohibited by that provision from being construed as an admission of liability. The evidentiary significance of the making of weekly

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payments of workers compensation in the absence of such a legislative prohibition was considered by the Full Court of the Supreme Court of South Australia in Christiansen v JW Simpson & Co Pty Ltd

[1971] SASR 412. In that case Hogarth J said the following, at 420-421:

"An employer does not raise an estoppel against himself by making payments under the Workmen's Compensation Act, at least unless the workman can show that by so doing he has led the workman to take some course to his prejudice. There is no such evidence in the present case. Although, therefore, I do not regard the payments by the respondent as raising an estoppel against the respondent, I think that the conduct of the respondent upon the receipt of the notice of injury, is evidence of an admission by the respondent, that, at the time of the making of the payments, it accepted the truth of the allegations made in the notice of injury. Now this does not mean that an employer is bound irrevocably by such an admission. It is always open to an employer to show that, although such payments were made, they were made, for example, under the inducement of a mistake of fact, or of misrepresentation on the part of the workman. But unless the payments are explained in some such manner, the fact that they were made does amount to an admission which is available to the workman on his seeking arbitration under the Act."

19           That case was distinguished in Vergis v Brownbuilt Limited (1973) 5 SASR 591 after South Australia had introduced legislation similar to our s 81. In that case Hogarth J said the following, at 606:

"But it seems to me that an inference of an admission of liability arising from a payment of a workman's compensation no longer arises, in view of the provisions contained in s 53 of the Workmen's Compensation Act 1971. That section makes it mandatory for an employer to commence weekly payments of workman's compensation under that Act as soon as possible but in any case not more than two weeks after the workman has produced a certificate from a legally qualified medical practitioner …".

20 In the situation that arose in this case, the employer's liability to make weekly payments pursuant to s 69(1) revived after a period in abeyance. Since an employer has no choice, it could not be reasonably open to any court or tribunal to treat the resumption of weekly payments as an admission that the worker continued to be qualified to receive them. The inapplicability of s 81AA(1)(a) of the Act therefore did not provide a reason for any of the other provisions of the Act to be interpreted in the manner contended for by the employer.

Conclusion

21           For the reasons stated above, the employer became liable to make weekly payments to the worker when it received the medical certificate of 14 June 2023. That liability continued until the certificate expired on 12 July 2023, prior to the tribunal determining on 7 August 2023 that the employer had an arguable case in relation to the payment of compensation.

22           I therefore allow the appeal, set aside the decision appealed against, and order that the respondent pay to the appellant weekly payments of workers compensation in respect of the period from 18 May 2023 to 12 July 2023 inclusive.