Selected Joinery Pty Ltd v Tierney
[2001] TASSC 74
•10 July 2001
[2001] TASSC 74
CITATION: Selected Joinery Pty Ltd v Tierney [2001] TASSC 74
PARTIES: SELECTED JOINERY PTY LTD
v
TIERNEY, Marissa Chavez
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2001
DELIVERED ON: 10 July 2001
DELIVERED AT: Hobart
HEARING DATE: 15 June 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of tribunals, boards, commissioners - Tasmania - Genuine dispute as to liability to pay weekly payments during incapacity - Whether tribunal empowered to determine existence of genuine dispute as to liability to pay benefits as well where no specific claim for benefit made - Whether power to order that benefits not be paid.
Workers Rehabilitation and Compensation Act1988 (Tas), s81A(3).
Inghams Enterprises Pty Ltd v Young A19/1995, followed.
G L and V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308, referred to.
Aust Dig Workers Compensation [143]
REPRESENTATION:
Counsel:
Appellant: A B Walker
Respondent: P J Harris
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Jennings Elliott
Judgment Number: [2001] TASSC 74
Number of paragraphs: 11
Serial No 74/2001
File No LCA 1/2001
SELECTED JOINERY PTY LTD v MARISSA CHAVEZ TIERNEY
REASONS FOR JUDGMENT COX CJ
10 July 2001
This is an appeal from the refusal of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") to vary an order earlier made by it whereby the Tribunal determined that a genuine dispute existed with regard to the employer's liability to pay compensation by way of weekly payments and ordered that compensation by way of weekly payments not be paid by the employer "for the period of incapacity the subject of this referral". The appellant employer had sought an order deleting therefrom the words "for the period of incapacity the subject of this referral", a course to which the Tribunal acceded and this is no longer in dispute; and further had sought the addition of words to the effect that "a genuine dispute existed concerning the liability of the appellant employer to pay the costs of any benefits payable under the Workers Rehabilitation and Compensation Act 1988 ('the Act'), Pt VI, Div 2, and determined that the cost of the benefit should not be paid by the employer". The application had been made pursuant to the Act, s62(2).
Once again, issues arise as to the meaning and effect of the Act, s81 ff. This is the first section contained in the Act, PtVII, which is headed "Payment of Compensation and Related Matters" and of Div 1 thereof which is headed "Provisions relating to weekly payments and other benefits". Section 81(1) imposes an obligation on an employer who has received a claim for compensation in relation to an injury to a worker employed by the employer to commence making weekly payments at the times therein set out. As Zeeman J pointed out in Freemasons Homes of Southern Tasmania v Greenwood (1996) 5 Tas R 445 at 455 - 456:
"Section 81(1) cannot be read literally. It cannot require that any worker who makes a claim for compensation be paid a weekly payment. The Act, PtVI provides for two types of compensation, namely what is described as basic compensation, which includes weekly payments and lump sum payments in respect of death and specified injuries, and what is described as additional compensation, in respect of medical and other services and travelling expenses. A claim for compensation may be made in circumstances where the worker does not assert an entitlement to a weekly payment at all because no incapacity for work has resulted from the injury. The worker may merely seek payment in respect of medical or other services necessitated by the injury and payable pursuant to the Act, PtVI, Div2. It cannot be the case that s81(1) obliges an employer to commence making a weekly payment to such a worker. It follows that s81(1) is subject to some implied limitations. At the very least it only applies to a claim for compensation which in its terms asserts some incapacity for work because, absent such incapacity, the Act makes no provision for a weekly payment."
Section 81(2) imposes a pecuniary penalty for an employer's failure to comply with that obligation. Section 81(3) provides for an exemption. The obligations set out in subs(1) do not apply to an employer who avails himself of the provisions of ss81AA or 81A(1). Section 81AA provides a procedure for deferring for up to 28 days a decision whether to accept or dispute liability to pay compensation by way of weekly payments or other benefits. Section 81A provides relevantly as follows:
"81a ¾ (1) An employer who disputes liability ¾
(a) to pay compensation by way of weekly payments for an injury referred to in section 81(1); or
(b) to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury ¾
must, within 14 days of receiving the claim for compensation in respect of the injury to the worker ¾
(c) serve the worker with written notice that the employer disputes liability ¾
(i)to pay compensation by way of weekly payments and must inform the worker of the reasons for disputing liability; or
(ii)to pay any benefits payable under Division 2 of Part VI in respect of the injury and must inform the worker of the reasons for disputing liability; and
(d) refer the matter to the Tribunal.
(2) An employer who refers a matter to the Tribunal under subsection (1) must, at the time of referring the matter to the Tribunal, advise the Tribunal in writing whether or not weekly payments are being made to the worker pending determination of the matter by the Tribunal.
(2A) …
(2B) …
(2C) …
(3) The Tribunal must ¾
(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 genuine dispute 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 genuine dispute 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) …
(5) Notwithstanding that liability has not been disputed in accordance with subsection (1) or section 81AA(3), 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) of this section or section 81AA(3), as the case may be, refer the matter to the Tribunal.
(6) … "
Section 81AB provides:
"81AB ¾ Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the employer does not, in accordance with section 81AA or section 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim."
The facts giving rise to the application were as follows. On 22 March 2000, the worker made a claim for compensation upon her employer. Her worker's report described her injury as "right wrist pain left shoulder and neck pain and stress". The employer disputed liability for the worker's claim and invoked the dispute procedure prescribed by s81A(1). The introductory paragraph to the referral was expressed in these terms:
"We, Selected Joinery Pty Ltd being the employer of [the worker] who has made a claim for compensation under the Act in relation to an injury, dispute any liability to pay compensation by way of weekly payments and/or cost of benefits under Division 2 of Part VI in respect of the injury."
Filed with the reference was the initial Workers Compensation Medical Certificate of Dr J R Van der Vlist. That certificate indicated that the worker was wholly incapacitated for work from 17 March to 2 April 2000. The hearing of the employer's reference proceeded before the Tribunal on 5 July 2000. At the hearing, witness statements and a medical report were tendered on behalf of the employer. Submissions were made by counsel for both parties. The Tribunal then proceeded to determine that a genuine dispute did exist concerning the worker's claim and ordered that weekly payments for compensation not be paid by the employer. In the course of delivering reasons for the orders made on 5 July 2000, the learned Commissioner constituting the Tribunal said:
"I am going to make an order that there is a finding of a genuine dispute, with respect to this claim. And I do so, bearing in mind that I am to consider this matter subjectively from the employer's view point. And I need only be satisfied that there is, on that basis, a genuine dispute, being one that is not frivolous, and not vexatious and is arrived at after reasonable and proper enquiry.
And I am so satisfied, having regard in particular, to what I have heard from Mr Stewart [then counsel for the employer], on the subject of notice, which is to some degree corroborated by the documents that he has tendered. Which, together, indicate to me, that there is a real issue as to notice, with respect to each of the three conditions, that the worker complains of."
On the hearing of the application to the Tribunal to vary the orders which it had made on 5 July 2000, counsel for the employer submitted that because the Tribunal had expressed itself satisfied of the genuineness of the dispute in respect of the employer's liability to pay compensation by way of weekly payments for the worker's injury or condition, particularly in respect of the giving of notice, it necessarily followed that the Tribunal must have been similarly satisfied in respect of the employer's liability to pay the costs of benefits and should have determined, in accordance with s81A(3), that the cost of the benefits is not to be paid by the employer. Counsel relied upon the case of Inghams Enterprises Pty Ltd v Young, a decision of Wright J A19/1995. In that case, although the reference to the Tribunal by the employer under s81A(1) disputed only liability to pay compensation by way of weekly payments for the injury sustained by the worker, the Tribunal made a determination that there was a genuine dispute in relation to weekly payments of compensation, but specifically went on to determine that there was not a genuine dispute in relation to the cost of benefits and ordered that weekly payment not be made, but that benefits be paid. Wright J, at 4, said in respect of benefits:
" Such benefits are only payable by the employer where the employer is liable to pay compensation to the worker - see s75(1). If the employer is not so liable no benefits are payable by him. In my opinion a dispute in relation to liability to pay compensation necessarily involves a dispute as to liability to pay the cost of such benefits."
Later on that page he said:
"I do not consider it necessary for an employer who is disputing liability to pay compensation to also dispute liability to pay the cost of benefits. The latter is subsumed under the former. To hold an employer liable to pay such costs whilst at the same time finding there is a genuine dispute as to liability (as here) is an absurd result and cannot be supported."
In this case, the Tribunal held that it was required by s81A(3) to consider as separate issues the appropriate determination to be made concerning weekly payments as distinct from the cost of benefits and that as there was no material before it evidencing that any claim for benefits had been made, there was no basis for considering the issue. Reference was made to Blacklow v Attorney-General for the State of Tasmania A7/1994 where Zeeman J said, at 2:
"I observe that even if the learned Commissioner was right in assuming that s81A(3) had application, he erred in making a determination relating to benefits payable under Div2 of PtVI because it is plain that he did not consider that a genuine dispute existed concerning the liability of the respondent to pay the cost of any such benefits. He did not say that he considered there to be such a dispute and there was no material before him which could have founded any belief that there was such a dispute."
That case, however, was entirely different from the present. The question there was whether the genuine dispute provisions of s81A(3) had any application to a referral under s81A(5), that is, where an employer had not disputed liability and subsequently wished to dispute liability for the payment of weekly payments and/or benefits. Zeeman J held that they did not have any such application and in passing, commented that in any event the Commissioner who had purported to make orders under s81A(3) in respect of weekly payments and benefits had no material upon which to base a belief that there was any dispute about benefits. The evidence only showed that the employer had medical opinions challenging the worker's alleged incapacity for work. Clearly even if there had been jurisdiction to make determinations under s81A(3), there could well have been an entitlement to benefits such as medical treatment and the like, notwithstanding that the worker was not incapacitated for work by the injury.
In Inghams Enterprises Pty Ltd v Young (supra), the grounds for disputing the liability for compensation were that further evidence was required that the injury arose out of and in the course of the employment. The employer disputed liability to pay any compensation. In this case, the employer has disputed its liability to pay any compensation for that reason, and further for the reason that the Tribunal noted, in particular, namely that appropriate notice may not have been given in accordance with the Act. In my view, it necessarily follows that as the Tribunal found there was a genuine dispute on the above basis, the existence of a dispute in respect of benefits as well as weekly payments of compensation has been demonstrated and a determination under s81A(3)(d) should have been made.
As I understand it, the argument put by the respondent is that the only claim before the Tribunal was one for weekly payments and not for benefits and that the Tribunal could not therefore make orders in respect of a claim which had not been made. The prescribed form set out in the Regulations and which was filled in by the worker does not specify the nature of her claim. As Wright J pointed out in Inghams Enterprises Pty Ltd v Young (supra), there is no provision in that form for the worker to claim medical or other expenses of the kind provided for in the Act, Pt VI, Div 2. At 2 he said:
"Indeed, nowhere does the prescribed form make provision for the worker to state the nature of his claim against his employer. The form is plainly deficient in this respect, particularly when one has regard to the Act, s81A."
Nevertheless, the prescribed form does not appear to have been amended to cure the defect. In the present case, it is implicit from the insertion of a medical certificate as to incapacity for work between named dates, namely 17 March 2000 and 2 April 2000, that the worker was making a claim for at least weekly payments, but beyond the fact that she obviously consulted a doctor in respect of her injury and presumably incurred some expense in doing so, there is no specific claim for other benefits on the form.
I do not consider that this submission has substance. Section 81A requires an employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in s81(1) or to pay the cost of benefits in respect of the injury within 14 days of receiving the claim for compensation in respect of the injury, to serve a notice on the worker and to refer the matter to the Tribunal. In this case, the employer has complied with the plain words of the section. It has indicated in its referral and notice the fact that it disputes liability to pay both kinds of compensation and it has done so within 14 days of receiving the claim for compensation, whether or not that claim, on its face, is confined to one or other kind of compensation or extends to both. The Tribunal being seized of the matter referred, that is, the dispute as to the liability to pay both kinds of compensation, had the obligation pursuant to s81A(3) of making such of the determinations or orders set out in pars(a) to (d) thereof as the circumstances required. The fact that a genuine dispute existed as to the threshold question whether or not the worker had any entitlement to compensation at all required a finding that there was a genuine dispute as to the liability of the employer to pay either weekly payments or other benefits or both, and the orders sought by the appellant ought to have been made.
The ambit of s81AB is irrelevant to the question raised in this appeal. It has been held in respect of that section that the failure of an employer to dispute liability in respect of an initial claim for compensation does not prevent the employer availing itself of the procedures in ss81AA or 81A in circumstances where a new claim can be identified (G L and V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308). Some of the claims identified as new within the purview of those procedures are claims for weekly payments where the initial claim had been confined to one for benefits only (or vice versa), or for weekly payments where earlier payments have been lawfully terminated under s86, or have lawfully ceased due to the expiry of a medical certificate and there has been a substantial gap in the presentation of a fresh one (ibid, at 320). In that case, the circumstance under consideration was the last-mentioned one. At 313, I posed the question:
"… whether the presentation of a fresh certificate of incapacity after a break in the continuity of certification to that effect amounts to a further claim for workers compensation which attracts the provisions of s81 et seq.".
In Pataki v The University of Tasmania [2000] TASSC 144 at par3, I sought to make it clear that G L & V N Barber Pty Ltd v Ryan (supra) "is not authority for the proposition that wherever there is a gap in the continuity of medical certificates of incapacity, presentation of a further certificate constitutes the making of a fresh claim attracting the provision of s81 ff". The point I was endeavouring to make was that some factual basis must exist for regarding a claim made after the first claim has been made as a new claim to which s81 ff apply. In G L & V N Barber Pty Ltd v Ryan (supra) the break in certification was about six months, not a matter of a few days which might be due to delay by the medical practitioner concerned in providing a certificate. In Pataki v The University of Tasmania (supra), I held that the presentation of certificates of incapacity some months after the last one had been presented and after proceedings had been taken by the employer under s81A with the Tribunal finding the existence of a genuine dispute, did not amount to a fresh claim, but was a claim to the worker's continued entitlement to compensation in respect of the same injury which it was up to the worker to refer to the Tribunal in view of the finding of a genuine dispute. In FAI Insurance Co Ltd v MMI - CMI Insurance Ltd 14/1992 (noted at (1992) 1 Tas R 404, NC5), a worker initially sought only benefits in respect of minor trauma received when he was unlawfully assaulted at work, but he subsequently suffered Post Traumatic Stress Disorder and became incapacitated thereby. In V L & G N Barber Pty Ltd v Ryan (supra), I regarded that as illustrating a situation in which the later claim for weekly payments could properly be regarded as a fresh claim in respect of which the employer was not taken to have accepted liability in accordance with s81AB.
In the present case, the transcript of 5 July 2000 reveals that counsel for the worker asserted that some medical accounts had been sent to the employer and counsel for the latter conceded that his client had received some, although he did not have any details of them. In the light of the claim having been made on 22 March 2000, only 3½ months earlier, it is difficult to see how the submission of such accounts, assuming they relate to the alleged injury, could possibly be regarded as fresh claims independent of the claim of 22 March 2000. The possibility that at some time after the initial claim was made, medical accounts or the like might be submitted in circumstances justifying the conclusion that a fresh claim was being made, was not a proper reason for the Tribunal not to make an order or determination in respect of benefits payable in respect of the injury the subject of the claim submitted on 22 March 2000. The appeal will be upheld and the Tribunal's determination of 29 January 2001 that a determination pursuant to the Act, s81A(3)(d) not be made, set aside. In lieu thereof, the order varying the Tribunal's order of 5 July 2000 will be further varied by adding thereto a determination that a genuine dispute exists concerning the liability of the employer to pay the cost of any benefits payable under the Act, Pt VI, Div 2, in respect of the injury to the worker and that the cost of the benefits are not to be paid by the employer.
0