Walker v J & A Freeman Building Services
[2006] TASSC 90
•8 November 2006
[2006] TASSC 90
CITATION: Walker v J & A Freeman Building Services [2006] TASSC 90
PARTIES: WALKER, Bernard
v
J & A FREEMAN BUILDING SERVICES
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 46/2006
DELIVERED ON: 8 November 2006
DELIVERED AT: Hobart
HEARING DATE: 23 August 2006
JUDGMENT OF: Crawford, Slicer and Blow JJ
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Claims for compensation – Delivery to, acceptance or rejection of claim by employer – Employer referring notice disputing claim – Whether dispute may relate to the extent of incapacity or amount of compensation payable as opposed to liability to pay compensation at all.
Workers Rehabilitation and Compensation Act 1998 (Tas), ss69(13), 81A.
Haas Investments Pty Ltd v Viney [2001] TASSC 147, disapproved.
Aust Dig Workers Compensation [298]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell
Respondent: N Sweeney
Solicitors:
Appellant: Ogilvie Jennings
Respondent: Page Seager
Judgment Number: [2006] TASSC 90
Number of paragraphs: 78
Serial No 90/2006
File No FCA 46/2006
BERNARD WALKER v J & A FREEMAN BUILDING SERVICES
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J (Dissenting)
BLOW J
8 November 2006
Orders of the Court
Appeal allowed.
Orders made on 15 June 2006 on the appeal from the Workers Rehabilitation and Compensation Tribunal set aside.
Appeal from the Workers Rehabilitation and Compensation Tribunal dismissed.
Serial No 90/2006
File No FCA 46/2006
BERNARD WALKER v J & A FREEMAN BUILDING SERVICES
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
8 November 2006
Circumstances leading to a s81A referral
In January 2005, the appellant, an employee of the respondent, claimed compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") with respect to a lower back injury suffered at work in November 2004. Upon the basis of a medical report it appears likely that he was employed as a carpenter without formal qualifications and that he was in fact a qualified bricklayer. The respondent disputed liability to pay compensation and referred the matter, presumably under s81A, to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). By consent, the Tribunal determined that a reasonably arguable case existed, presumably with respect to the liability of the respondent to pay weekly compensation at the very least. The appellant then referred his claim for compensation to the Tribunal under s42. Following a defended hearing, the Tribunal found that the lower back injury was causally related to the employment and that the appellant had an entitlement to compensation.
When the present dispute came before the Tribunal in February of this year, the Tribunal noted that it seemed that up to the end of September 2005, the appellant presented medical certificates to the respondent that entitled him to the ongoing receipt of weekly payments. On 29 September 2005, the appellant's general medical practitioner, Dr Davidson, provided a medical certificate that certified that he would cease to be incapacitated for work on 1 October 2005. However, when filling in the printed form under the Act, in response to the request that he "detail permanent restrictions, if any", Dr Davidson wrote that the appellant should avoid lifting weights greater than 20 kilograms and standing still for long periods. He also wrote that the appellant should "continue with gym/physio as before".
It appears likely that as a result of that certificate, the respondent ceased the payment of weekly compensation, possibly from 1 October. The Tribunal made no finding to that effect but it is to be inferred from its treatment of the respondent's subsequent referral and the failure of the parties to suggest otherwise.
On 14 November 2005, Dr Davidson provided another medical certificate. It was not altogether clear, but it seems likely that the doctor was certifying that there had been a recurrence of the previously compensable condition, that the appellant was fit to return to modified duties from 14 November to 31 December 2005 and that he should avoid vertical lifting above 12 kilograms, bending for long periods (10 minutes) and standing for long periods (30 minutes). That certificate came to be received by the respondent, which arranged for the appellant to be assessed by a consultant neurosurgeon, Mr Stuart. In a report addressed to the respondent's solicitors and dated 19 December 2005, Mr Stuart reported having been told by the appellant that his employment by the respondent had been terminated and that he was self-employed, working three to four hours each week. He was contemplating returning to the workforce as a bricklayer but was continuing to experience low back pain and left sciatica. Mr Stuart recommended "that he undertake a graduated return to full duties" and that he was fit to do so, and considered "that it would be more appropriate for him to re-enter employment as a carpenter rather than as a bricklayer, as that work involves considerable bending and stooping." Other statements in Mr Stuart's report included that "active rehabilitation and employer involvement was highly desirable"; that "the prognosis in the short-term is poor, but in the long-term is more favourable if he can undergo an active exercise and walking program, as well as a graduated return to work; that "if he does not return to work within three months from this date, he should undergo medical review"; that "if he does return to work as a builder, I would not place any restrictions on returning to full duties ... the present medical evidence is that patients with degenerative disease should continue an active physical lifestyle and continue work without restrictions"; and, with regard to the question whether any restrictions should be placed on the appellant's capacity to work as a builder, that "the only restriction I would place on Mr Walker is to avoid lifting with a bent back and instead lift with his knees bent".
The s81A referral
The Court has not been acquainted with any evidence that the appellant claimed further payments of weekly compensation or made any other claim for compensation under the Act. The circumstances in which Dr Davidson's certificate of 14 November 2005 came into the possession of the respondent is not apparent. However, it was received and the respondent exercised its right under s69(13) to treat it as a claim for compensation to which s81A applied. I will say much more about the statutory provisions later. On 1 February 2006, the respondent's solicitors lodged with the Tribunal a formal reference under s81A. It stated some of the history and attached to it were copies of the two certificates of Dr Davidson and the report of Mr Stuart. It stated that the respondent relied upon s69(13) and treated Dr Davidson's certificate of 14 November 2005 as a claim for workers compensation to which the provisions of s81A applied. Paragraphs 7 – 10 stated:
"7On behalf of J & A Freeman Building Services we indicate that they dispute any liability to pay compensation by weekly payments in respect to this claim for compensation.
8We refer this matter on their behalf to the Tribunal pursuant to Section 81A.
9We have notified the worker in writing that J & A Freeman Building Services dispute liability to pay compensation and have informed the worker of their reasons for disputing liability.
10Weekly payments are not being made to the worker."
As to the respondent's reasons for disputing liability to pay compensation, the reference stated:
"1Dr Davidson has imposed the following restrictions upon your work capacity 'vertical weightlifting to 12kg, avoid bending for long period (10 mins), avoid standing for long periods (30 mins)', as per his certificate of the 14th November 2005.
2Attached hereto and marked with the letter 'C' is a report from Mr Stuart, a Neurosurgeon, dated the 19th December 2005 in which Dr Stuart expresses the opinion that he would not place any restrictions upon Mr Walker returning to full duties.
3In other words the employer says that there is a clear dispute between Mr Stuart's opinion as to the extent of any incapacity suffered by Mr Walker when compared to the opinion expressed by Dr Davidson in his certificate.
4It says that the issue of the extent of the worker's capacity for work is a significant issue which can ground a reasonably arguable case determination. It says that the issue of the worker's capacity for work and thus what weekly payment, if any, the worker is entitled to forms the basis of a reasonably arguable case finding."
Sections 69(13), 80A and 81A
Section 81A provides:
"81A Disputes of liability for weekly payments and other benefits
(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) The referral of a matter to the Tribunal is to be accompanied by –
(a) the prescribed fee; and
(b)all evidentiary material on which the employer intends to rely at the hearing of the matter.
(2AA)If an employer fails to lodge evidentiary material under subsection (2)(b), the employer may not rely on that material unless the Tribunal otherwise allows.
(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)The Registrar is to advise the Tribunal of the Registrar's determination.
(2C)The Tribunal may make an order giving effect to the Registrar's determination.
(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)For the purposes of this section, the Tribunal or the Registrar may conduct any hearing the Tribunal or the Registrar considers necessary by any appropriate means including, but not limited to, a telephone conference."
Subsection (1) permits an employer to refer a matter to the Tribunal in circumstances where the employer disputes liability to pay weekly compensation or, under PtVI Div2, the cost of medical, hospital, nursing, constant attendance, rehabilitation and ambulance services, burial and cremation expenses and travelling expenses. The reference in s81A to the payment of those costs as "benefits" seems inappropriate, but that is of no consequence.
By s80A it is provided that for the purposes of PtVII Div1, which includes s81A, "a claim for compensation is 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". That provision was inserted into the Act by the Workers Rehabilitation and Compensation Amendment Act 2000, which also inserted s69(13) in these terms:
"(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."
The Tribunal's decision
The Tribunal heard the reference on 14 February 2006. On 21 February it dismissed it and ordered "pursuant to s81A(3)(a) that the employer make weekly payments to the worker, such payments to be in accord with the Act and to date from 14 November 2005".
In its reasons the Tribunal noted that the respondent sought to treat its receipt of Dr Davidson's certificate dated 14 November 2005 as a claim for compensation by the application of s69(13) and that the respondent had submitted that it was entitled to do so because the certificate was received more than 14 days after 1 October 2005 when, by his previous certificate, Dr Davidson had indicated that the appellant's incapacity for work had ceased. The appellant's solicitor had conceded that the November certificate qualified as a claim for compensation by virtue of s69(13) and the Tribunal proceeded on that basis. A perusal of the Tribunal's reasons show that it treated the certificate as a claim for weekly payments and that it did not treat it as a claim for "benefits" under PtVI Div2. Presumably the parties argued the matter on that basis. However, it is to be noted that there is nothing in the Tribunal's reasons, or in the material before this Court, that reveals what, if anything, the appellant was claiming, either in the form of weekly payments or benefits.
The Tribunal observed that it was the respondent's case that it should succeed on its reference because, in the light of Mr Stuart's report, it was reasonably arguable that the appellant was not incapacitated for work as certified by Dr Davidson. The Tribunal also observed that it was the appellant's case that there was no real difference between the opinions of Dr Davidson and Mr Stuart concerning the appellant's level of incapacity.
The Tribunal accepted, upon the authority of the dictum of Evans J in Haas Investments Pty Ltd v Viney [2001] TASSC 47 at [13], that a difference concerning the level of a worker's capacity for work can be a proper basis for disputing a claim. It continued:
"Whether a reasonably arguable case finding should be made on this ground, as with all other grounds for disputation, depends on whether the Tribunal can be satisfied that the material before it does, at face value, avail the employer of a 'defence' to the claim. As I have said previously ([2005] TASWRCT 9 at [7]) a reasonably arguable case will not exist if the 'defence' postulated by the employer is considered to be obviously hopeless or entirely without merit."
Next, the Tribunal said that it was the appellant's claim that he had an entitlement to weekly payments because he had a partial incapacity for work, that being that he should restrict lifting of weights to 12 kilograms, avoid bending for long periods (10 minutes) and avoid standing for long periods (30 minutes), as recommended by Dr Davidson in his second certificate. The Tribunal then considered Mr Stuart's report, upon which the respondent relied, to see if a different view was expressed. After doing so, the Tribunal made a number of observations and reached its ultimate conclusions in the following terms:
"Mr Stuart does not specifically address the reasonableness or appropriateness of the restrictions recommended by Dr Davidson. Nevertheless, it is his opinion that the worker is fit to work as a carpenter, (which was the worker's occupation at the time of his injury although he was not formally qualified in that trade) and that no restriction is justified save that he avoid lifting with a bent back. If Mr Stuart's opinion evidence was confined to these comments then it is my view that a reasonably arguable case finding would be warranted because such evidence would, if accepted, avail the employer of a 'defence' to the claim that the worker has an entitlement to weekly payments for a partial incapacity. However, it is my opinion that it would be unfair and wrong to 'cherry pick' those parts of Mr Stuart's report favourable to the employer's case and ignore other parts which also have relevance to the claim. In this regard it should be noted that although Mr Stuart is of the view that the worker is fit to work as a carpenter with minimal restriction, he is only fit to do so on a graduated basis. In other words it is, in my opinion, the clear tenor of Mr Stuart's report that the worker was not at the time of examination fit to work a full working week and in this sense, I infer, had a partial incapacity.
In the result I conclude that the evidence adduced by the employer, notably the report of Mr Stuart, does not satisfy me, even when considered at its highest, that a reasonably arguable case finding should be made because although it is at variance with those work restrictions recommended by Dr Davidson it nevertheless acknowledges a partial incapacity for work. It would, in my opinion be quite incongruous to make a reasonably arguable case finding based on portion of Mr Stuart's evidence and thereby deny the worker weekly compensation for a partial incapacity when other portion of that same witnesses' evidence acknowledges an ongoing partial incapacity, albeit for other reasons.
The employer's reference is dismissed. There will be an order pursuant to s81A(3)(a) that the employer make weekly payments to the worker, such payments to be in accord with the Act and to date from 14 November 2005."
All the Tribunal appeared to be saying in that passage was that it was satisfied that the two medical specialists agreed that there was "a partial incapacity for work" and "an ongoing partial incapacity". The Tribunal did not find that the views of the two doctors were identical as to the level of the appellant's incapacity for work. Such a finding was not open merely upon a consideration of Dr Davidson's certificate and Mr Stuart's report, because Dr Davidson was of the opinion that the appellant should avoid lifting weights beyond 12 kilograms, bending for long periods (10 minutes) and standing for long periods (30 minutes) whereas Mr Stuart's opinion was that there should be a graduated return to work and that he should avoid lifting with a bent back and instead lift with his knees bent.
The first appeal
The appellant appealed to a judge against the Tribunal's determination that the employer did not have a "reasonably arguable case" and against the Tribunal's order that the respondent make weekly payments to the appellant in accordance with the Act from 14 November 2005. The sole ground of the appeal was vaguely expressed in terms that the Tribunal erred in law when it determined that it was not satisfied that there was a reasonably arguable case within the meaning of s81A. The learned judge held that the only conclusion open on the material before the Tribunal was that there was a reasonably arguable case, from the respondent's point of view, as to the level of incapacity. The learned judge then sought further submissions from counsel and on 15 June 2006, ordered that the Tribunal's determination be quashed, in substitution for it determined that there was a reasonably arguable case in relation to the reference and ordered that the respondent not pay to the appellant weekly payments or the cost of benefits payable under PtVI Div2. There is no material before this Court to indicate that the appellant was in fact claiming the cost of any benefits.
In the course of argument, counsel for the appellant briefly submitted to the learned judge that there was no error in the Tribunal's determination at all. However, her submissions were principally directed to an issue that had not been raised before the Tribunal, that being that the full process under s81A was not available to the respondent in the circumstances of the case. Counsel submitted that the dictum in Haas Investments Pty Ltd v Viney (supra) was incorrect and not binding and that a dispute as to the level of incapacity, as opposed to the existence of an incapacity, was not relevant to the liability of an employer to pay compensation. She further submitted that if the extent of an incapacity could give rise to an argument about liability capable of being agitated under s81A, it would be hard to see when that would not occur, and to allow it would make the scheme of the Act unworkable. The learned judge rejected those submissions and held that it was open to the Tribunal to accept that a dispute about the level of an incapacity was a proper basis for referral under s81A.
Next, the learned judge addressed at length the meaning in s81A(2A) and (3) of the expression "reasonably arguable case ... concerning the liability of the employer to pay". A "reasonably arguable case" is an expression with which the members of this Court are well familiar and there is no need to consider it here. The learned judge then reached the conclusion and made the orders to which I referred earlier.
The appeal has been brought from her Honour's determination and orders. There is no need to repeat the grounds of the appeal, which can be found in the judgment of Slicer J.
Observations on ss81, 81A and 69(13)
Under the previous legislation, the Workers' Compensation Act 1927, a worker who made a claim for weekly payments of compensation in respect of total or partial incapacity had no means of compelling the employer to commence or continue making payments prior to the determination of an action for compensation. A consequence in many cases was that a worker, whose claim for weekly payments was denied, or ignored, by the employer could be left with no income, no matter what was the strength of the claim, until the action for compensation had been determined by the court. See Precise Timbers Pty Ltd v Burgess (1991) 3 Tas R 124 at 144. That was changed with the enactment of the present legislation.
A policy of provisions such as s81, which require virtually immediate commencement of weekly payments by the employer upon receipt of a claim, is that a worker who is entitled to weekly compensation should not be kept out of his or her payments while the employer decides whether to admit liability or allow the question to be decided by the Tribunal. See State of South Australia v Wall (1980) 24 SASR 189 at 193; Precise Timbers Pty Ltd v Burgess at 133. Parliament decided that a worse evil was to deny workers their payments in the interim than to make employers commence payments on receipt of claims. The effect of s81 is that upon receipt of a claim for payments of weekly compensation, an employer must commence immediately the making of those payments.
Section 81A(1) is intended to provide a measure of relief to an employer who claims to have a case that it has no liability to pay weekly compensation and seeks to be relieved of the obligation imposed by s81. It obliges the employer, within a time limit, to refer the matter to the Tribunal and to establish that it has a reasonably arguable case. Indeed, it is a condition precedent, a prima facie absolute obligation, which must be fulfilled before an employer is entitled to dispute liability to commence making weekly payments following receipt of a claim. Precise Timbers Pty Ltd v Burgess at 134 and 137. However, under s81A(5), which was added to the Act after Precise Timbers Pty Ltd v Burgess was decided, although the employer must make payments of weekly compensation that have been claimed in a case where the employer has not referred the matter to the Tribunal under subs(1), nevertheless the employer may at some later time, refer to the Tribunal the question of its liability to pay. Such a reference may be made under s88.
Section 81A provides a relatively speedy process for assessing whether an employer, who wishes to dispute liability to pay weekly compensation, has a reasonably arguable case in that regard and for the making of consequential orders of an interim nature pending eventual resolution of the dispute, should it be found that the employer has or has not a reasonably arguable case. That a speedy process is intended is demonstrated by subs(2)(a), which requires the employer to lodge with the Tribunal all evidentiary material on which the employer intends to rely at the hearing, and by subs(2AA), which permits the Tribunal to authorise the Registrar to determine whether a reasonably arguable case exists concerning the liability of the employer to pay weekly compensation. If the employer has such a case, the Tribunal will determine under subs(3)(c) that weekly compensation is not to be paid by the employer. If the employer does not have such a case, the Tribunal will order under subs(3)(a) that the employer make weekly payments. In either case, the determination or order is essentially an interim one if the unsuccessful party wishes to fully contest the question of liability later.
In FAI General Insurance Co Ltd v MMI–CMI Insurance Ltd A14/1992 at 7, the view was expressed by Zeeman J that s81(2) (since replaced by s81A(1)) only applied to initial claims for payment of compensation with respect to an injury and that there could only ever be one such claim in respect of any one injury. However, a contrary view was expressed by Cox CJ in G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308 at 313 – 320. A consequence of that was that the question was considered by Parliament and the Act was amended by the Workers Rehabilitation and Compensation Amendment Act 2000. Two provisions were inserted into the Act to clarify the matter. By s80A it was provided that for the purposes of PtVII Div1, in which s81A is to be found, "a claim for compensation is 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". However, the view of Zeeman J was not left entirely untouched. Subsection (13) was inserted into s69 so as to provide that "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". It was as a consequence of subs(13) that the respondent was able to refer under s81A the matter of its liability in this case, whereas without it, the respondent could not have done so.
The subsection must be read in the context of the other provisions of s69 and in the light of s81A. Section 69 primarily deals with the calculation of the amount of weekly compensation to be paid to a worker, in cases of both total and partial incapacity for work, provided that the existence of that incapacity is supported by a certificate in a form approved by the WorkCover Tasmania Board and signed by a medical practitioner or accredited person. On its face, the subsection is poorly drafted. It purports to permit an employer to treat as a claim for compensation to which s81A applies, any medical certificate that is provided by a worker more than 14 days after the expiration of a period specified in any earlier certificate. In its context it must be referring to medical certificates that support the existence of a total or partial incapacity for work as referred to in subs(1). Further, it must be taken to be referring to a medical certificate that is provided more than 14 days after the expiration of the most recent period of incapacity to have been certified by a previous medical certificate.
The provision that the employer "may treat that certificate as a claim for compensation to which section 81A applies" is on its face, a strange one. The subsection does not in fact require that there be a claim at all. A medical certificate cannot in itself amount to a claim for compensation. State of Tasmania v Parsons (2002) 11 Tas R 26 at 44, 50; Thornton v Apollo Nominees Pty Ltd (2003) 12 Tas R 216 at 226. The presentation of a medical certificate to the employer may form part of evidence that establishes that a claim has been made, but it is the worker who makes a claim and a medical certificate is only used to support such a claim. It is in fact required by s69(1) before any weekly payment is due.
For the purposes of s81A, ignoring its provisions concerning benefits, the relevant claim for compensation is the claim that has been made by the worker for weekly payments. However, as I have just said, s69(13) does not require that a claim must in fact have been made. It merely requires that a medical certificate of a certain kind be provided to the employer. It is conceivable that a medical certificate, verifying the existence of a total or partial incapacity, might be provided by a worker to an employer without a claim for weekly payments being made or intended. It might be provided by way of information only, and with recognition on the part of the worker that there is no present entitlement to weekly payments for some reason. Whatever the situation, the subsection permits the employer to treat the certificate as a claim for compensation for the purposes of s81A, whether or not a claim has been made, and to refer the matter accordingly.
It is the appellant's case that under s81A, an employer, in the exercise of the right to refer a dispute concerning liability to pay compensation by way of weekly payments, is not entitled to rely on a dispute that is only about the extent of the worker's incapacity for work. It was argued that the employer must demonstrate a reasonably arguable case that it is has no liability to make weekly payments at all, and that a dispute going only to the amount of weekly payments that should be made does not fall within s81A. In other words, it was submitted for the appellant that disputes concerning weekly compensation that are within s81A are only those going to the general liability of the employer to pay weekly compensation at all and disputes that are not within the section include those relating only to the amount of weekly compensation, such as those arising out of contention about the correct method of calculation or the extent of the worker's incapacity for work. Counsel for the appellant said that in this case it was common ground that the respondent was liable to make weekly payments and that the dispute the respondent was seeking to raise concerned only the amount of the payment and therefore, it fell outside the scope of s81A. Counsel for the respondent conceded that the dispute concerned the amount of the weekly payments that should be made by the respondent.
The conclusion to which I have come is that s81A does not apply to disputes that concern only the amount of weekly payments and that do not concern the employer's liability to pay weekly compensation at all, for the following reasons:
1The section refers only to disputes concerning liability to pay and does not refer to disputes concerning the amount that should be paid.
2The Tribunal is required by subs(3), in the case of weekly compensation, to order either that the employer make weekly payments from a determined date or that compensation not be paid by the employer. No provision is made for an order that the employer pay any undisputed amount or any other amount that is determined by the Tribunal. It is reasonable to expect that if it was intended that included within s81A were disputes concerning the amount of weekly compensation that should be paid there would have been expressly included a power of the Tribunal to order interim payments in determined amounts. The omission of any express reference to such a power is significant. It is extremely unlikely that Parliament intended, for example, that if the worker claimed $500 a week and the employer established that it had a reasonably arguable case for disputing the claim, but only so far as concerned $50 of that amount, there should be an order under subs(3)(c) that compensation is not to be paid by the employer, which is the effect of what the appellant argued.
3A detailed and quantified claim by the worker is not required by s81A and for disputes referred pursuant to s69(13), there may be no actual claim at all. Without a quantified claim, the determination of whether there is a reasonably arguable case for a dispute concerning the amount of compensation may be impossible, particularly in a case such as this where the resolution of any dispute may depend on the level of incapacity. As I said, s81A makes no mention of disputes concerning amounts.
4If the Tribunal makes an order pursuant to subs(3)(a) that the employer make weekly payments from a determined date, as was ordered in this case, little hardship, if any, will be suffered by the employer if the dispute relates only to the amount of the weekly payments. Compliance with the order will only require the employer to pay what is due and nothing else. On the other hand, if it is ordered that payments by way of weekly compensation are not to be made by the employer, considerable hardship might be caused to the worker, particularly so if the dispute raised by the employer concerns only a small part of an amount claimed by the worker. The suffering of that hardship would be contrary to the undoubted policy behind s81.
The basis upon which the Tribunal made its order in this case is not altogether clear. A careful reading of what was said by the Tribunal raises the possibility that the Tribunal was of the same view as I have reached. I am not convinced that it formed the opinion that the views of Dr Davidson and Mr Stuart as to the extent of any ongoing capacity were the same. It appears that the Tribunal simply found that both doctors agreed that there was a partial incapacity for work. That finding was reasonably open. In any event, the order made by the Tribunal was the correct one.
In Haas Investments Pty Ltd v Viney (supra) at par13, Evans J expressed the view that if a worker makes a claim on the basis that he or she has been totally incapacitated, the employer may dispute the claim under s81A upon the basis that the worker is only partially incapacitated. With respect, I do not share that view for the reasons I have stated.
The only other ground of appeal to which I should refer concerns criticism of the Tribunal's use of the word "defence". It indicated that the question before it was whether there was a reasonably arguable case that the respondent had a "defence" to the appellant's claim. Although the word is not one that is used in s81A, I think that by using it in inverted commas the Tribunal acknowledged that and intended that its use of the word was not a literal one.
The order of the Tribunal "pursuant to s81A(3)(a) that the employer make weekly payments to the worker, such payments to be in accord with the Act and to date from 14 November 2005" was the correct one. Accordingly, I would allow the appeal, set aside the orders made by the learned judge on the appeal from the Tribunal and dismiss that appeal.
File No FCA 46/2006
BERNARD WALKER v J & A FREEMAN BUILDING SERVICES
REASONS FOR JUDGMENT FULL COURT
SLICER J
8 November 2006
In January 2005 the appellant made a claim for compensation for an injury occurring in the course of his employment with the respondent on 1 November 2004. The respondent originally disputed entitlement but following a hearing the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") made a finding of causal link between an event and injury and a determination of entitlement to compensation. The appellant presented the necessary medical certificates and was paid his entitlements until 1 October 2005. On or shortly after 29 September 2005, he presented to the employer a medical certificate (Form 1) which referred to the event of 1 November 2004 and which relevantly stated the opinion of the medical practitioner to be:
"I consider the worker … will cease to be incapacitated for work on 1/10/05"
and under the same heading "Capacity to work", detailed permanent duty restrictions as:
"avoid lifting > 20 kg avoid standing still for long periods continue with gym/physio as before."
The medical practitioner did not complete, as requested by the wording of the form, par9 of which asked for the identification of the certificate as "Initial", "Continuing" or "Final/Clearance". In response to par8 on the form "Review/Referral", no entry was made as to review, but in response to the question:
"Are professional rehabilitation services required for the purpose of return to work at this stage?"
wrote:
"continue with gym work physio for at [sic] 6 months."
No finding was made by the Tribunal as to whether the appellant in fact returned to work on 1 October 2005.
On or shortly after 14 November, the appellant forwarded a further certificate in which the same medical practitioner stated:
"6 …
… the injury or disease is:
a recurrence of a previously compensable condition
7 …
I consider the worker:
…
is fit to return to modified duties from 14/11/05 to 31/12/05."
with modifications to duties stated as:
"Restricted weight lifting to 12K.
Avoid bending for long periods (10 min
Avoid standing for " periods (30 min"
That the medical practitioner wished to review the worker on 28 November 2005 and, further, the type of certificate to be both "Initial" and "Continuing".
The respondent caused the medical condition of the appellant to be reviewed on 12 December 2005, with the reviewing practitioner giving as his opinion that he considered the appellant "fit to undergo a graduated return to full duties", and repeated his earlier assessment that:
"If he does return to work as a builder, I would not place any restrictions on returning to full duties. The present medical evidence is that patients with degenerative disease should continue an active physical lifestyle and continue work without restrictions."
and that the only restrictions upon the appellant's work as a builder were that he was:
"… to avoid lifting with a bent back and instead lift with his knees bent."
The respondent "referred this matter to the Tribunal pursuant to section 81A".
The referral claimed reliance on the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s69(13), in that the appellant treated the certificate of 14 November 2005 "as a claim for workers compensation to which the provisions of Section 81A apply" and stated that the employer disputed "any liability to pay compensation by weekly payments in respect of this claim for compensation".
The Tribunal dismissed the reference and ordered that the employer make "weekly payments to the worker, such payments to be in accord with the Act and to date from 14 November 2005". In doing so, the Tribunal appears to have:
(1)Treated the certificate of 14 November 2005 as a fresh claim. By implication it can be said that it accepted that there had been no certified incapacity or entitlement during the period 1 October to 14 November 2005.
(2)Proceeded on the basis that the referral was one permitted by the Act, s81A.
(3)Found as a fact "partial incapacity for work", but accepted that a "difference upon the level of a worker's capacity for work can be a proper basis for disputation of a claim", a conclusion which it claimed was consistent with the decision in Haas Investments Pty Ltd v Viney [2001] TASSC 147.
(4)Found that on the material presented to it, the employer had failed to establish a "reasonably arguable case" as required by the Act, s81A(3)(c), and, as such, having failed in its "defence", became liable to make weekly payments.
The Tribunal did not determine the amount to be paid. Its disposition, even accepting that the parties had conducted their respective cases on a preliminary question, did not deal with the matter referred and remains unsatisfactory.
The respondent appealed the order, claiming legal error in that:
"That the Learned Commissioner erred in law in determining that he was not satisfied that there was a reasonably arguable case within the meaning of Section 81(A) [sic] of the Workers Rehabilitation and Compensation Act1988."
There was no cross-appeal claiming error on the part of the Tribunal in other respects. However, on the hearing of the appeal, the respondent advanced a claim not previously made, namely that the employer was not entitled in law to use the Act, s81A, as a means of contesting liability to pay compensation. The learned primary judge rejected that contention, preferring the general approach taken in Haas (supra). She upheld the appeal on the basis that the Tribunal had either failed to apply the correct test in relation to the issue of "arguable" case or fell into clear error in determining that the respondent had failed to establish its foundation.
The grounds of appeal to this Court show confusion and an admixture of differing matters of fact, law and varying legal principles. Those grounds, some raised by amendment at the commencement of this appeal, are said to raise issues of more general importance which require clear statements of principle and application for the future working of the legislative scheme. The notice of appeal, as amended, states:
"1That the learned Judge erred in law in holding:
a) That a dispute as to the extent of the worker's incapacity could be the subject of a referral by the employer to the Tribunal under section 81A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
b) That section 69(13) permitted the employer to refer to the Tribunal and the Tribunal to entertain, a dispute about the extent of any ongoing incapacity of the worker.
c) That it was open to the learned Commissioner to accept that a dispute about the level of incapacity of the worker was a proper basis for a referral by the employer to the Tribunal under section 81A of the Act.
d) That although the referral by the employer to the Tribunal did not involve a fundamental challenge to liability it was nevertheless a matter to which section 81A applied.
e) That the term 'defence' in the test applied by the learned Commissioner to determine whether the employer had a reasonably arguable case was in this case an inappropriate term.
f) That the learned Commissioner ought to have found on the facts that there was a reasonably arguable case between the parties as to what, if any, liability to pay benefits (sic) existed.
g) That the learned Commissioner had attempted to resolve the inconsistencies between the medical certificate of Dr Davidson and the report of Dr Stuart.
h) That the respondent employer needed only to satisfy the learned Commissioner as to whether a prima facie case had been made out that there were reasonable grounds for a dispute."
In their respective arguments, the parties claimed that the Tribunal and the learned primary judge were in part correct and in part erroneous. The grounds themselves show competing bases for contention (eg, 1(a) to (c) as against (d)), agreement with the conclusion reached by the primary judge (ground 1(e)), admixture of fact and law (ground 1(f), consistent with the conclusion of the learned primary judge), and a claim unfounded by either fact or interpretation (ground 1(g)).
Rather than compound the confusion, I would prefer to retreat to a basic analysis of the case and determine whether the determinations and orders made by her Honour were wrong and a product of erroneous reasoning, wrong application of principle or interpretation. The orders and determinations challenged were:
(1)The original determination of the Tribunal was quashed.
(2)In substitution thereof, a determination made that "there is a reasonably arguable case in relation to the reference by the employer to the Tribunal on the 31st January 2006".
(3)The employer not pay "weekly benefits or the cost of benefits payable … to the employee".
(4)The respondent pay the appellant's taxed costs.
Orders 1 and 4 follow from the primary determination and order 3 a consequence of statute. The determination of the learned primary judge could only have been erroneous if:
(1)The Act, s81A, had no application to the reference. That challenge had not properly been made to the Tribunal so the simple answer to the ground is "no" and there was no error on the part of the primary judge.
(2)No error of law on the part of the Tribunal was shown. The error was clear and manifest and the learned primary judge required to reach the conclusion which she did.
The appeal to this Court ought be dismissed.
However, in deference to the possibility that the Act, s81A, might again, despite the endeavours of Parliament, be the object of legal complexity, the scheme will be considered in the light of statutory changes made by Act No 99 of 2000, s52, and Act No 65 of 2004, s24. Those provisions will be considered in the light of the circumstances of these proceedings.
(1)It was accepted by the parties and the Tribunal that an injury suffered by the appellant in the course of his employment in November 2004 was compensable. Although the employer disputed liability of payment, a determination was made in favour of the employee.
(2)On or about 29 September 2005, the employee provided a medical certificate to the employer which stated that he would cease to be incapacitated for work as and from 1 October 2005. As of that date, the employer, absent any further action or claim by the employee, ceased to be liable for the payment of compensation. No separate or concurrent claim was made in that certificate.
(3)On or about 14 November 2005, the employee provided to the employer a medical certificate stating that he was "fit to return to modified duties". It did not constitute a claim for the payment of compensation. It did no more than alert the employer to the possibility, consistent with the rehabilitative purpose of the legislation, that some modification to work practice might be warranted. It might have been open to the employer to seek to pay the employee less because of the suggested modifications. But no claim was made or basis for compensation claimed in the certificate. Had an attempt been made by either party to quantify "bending for long periods (10 min or avoid standing for long period (30 min", then a matter might have been the subject of referral by either party. In such a case, at some stage, a person or institution would be required to make such quantification of an amount of compensation.
(4)The certificate provided on or about 14 November 2005 was not a continuation of an existing claim. It purported to be both an "Initial" and "Continuing" certificate commencing as and from 14 November. It was outside the period provided for by the Act, s69(13). That section was inserted following decisions such as State of Tasmania v Cook (2000) 9 Tas R 191 and Pataki v University of Tasmania (1999) 9 Tas R 397. The certificate provided no basis for any assessment of any compensation nor represented a portion of loss temporal or financial. The employer might have done nothing other than note its presentation, although prudence warranted challenge and referral. Failure to contest might have exposed the employer to the risk of deemed acceptance by virtue of s81AB. The employer was, however, entitled by virtue of the Act, s69(13), to treat the certificate as a claim for compensation.
(5)The reference was in respect of "this matter". A "matter" is a significant word of wide import. The reference disputed "any liability to pay compensation" and stated the terms of the certification of 29 September that the employee would cease to be incapacitated as and from 1 October and those of the certification of 14 November that he was fit for "modified duties". The matter referred was the combined effect of those certificates, the import of the Act, s69(13), and the disputation of liability. It was a matter different to that considered by this Court in Precise Timbers Pty Ltd v Burgess (1991) 3 Tas R 124 or by Zeeman J in Blacklow v Attorney-General A7/1994.
The employer was entitled to refer a claim for compensation by the employee in accordance with the Act, s42. But here, absent acceptance of the certificate as constituting a claim (permitted by the Act, s69(13)), there had been no claim. Here the employer had previously, but unsuccessfully, contested liability. It was bound by that determination, but that did not preclude this challenge.
The Act, s81A, relevantly 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 ¾
(a)serve the worker with written notice that the employer disputes liability ¾
(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.
…
(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 ¾
(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.
…
(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 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.
…
(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."
The test of a "reasonably arguable case" is as stated in cases referred to by the learned primary judge in her reasons for judgment [2006] TASSC 45. The appropriate test was that followed by this Court in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354. Here the learned primary judge fell into error in her use of the wording of the Rutherford Report, AB par20. It was not extrinsic material which could be used in the interpretation of a statutory provision as provided for by the Acts Interpretation Act 1931, s8B(3)(b). It is not necessary for the purpose of this appeal to decide whether a dispute about the level of incapacity, rather than its existence, as considered in Haas (supra), is sufficient to ground disputed liability within the meaning of the Act, s81A. My own view, especially in the light of subs(5), is that it is, and I would adopt the approach stated in Haas. Here the time elapsed between the certificates of September and November entitled the employer to contest liability. There remained the option of a reference under s42 in more general form. Section 86 has its own separate tests which permit termination or reduction of a weekly payment. Here there had been no opportunity for either. Certification had ceased and the employer was entitled to treat the second certificate as either "no claim" or a fresh claim. The appellant had returned to work (or at least was required to) between 1 October and 14 November. Here it would seem that the employer had terminated payments as and from 1 October and that further recourse to s86 was not provided for in the legislation. In the circumstances of this case there was little, if any, scope for the operation of the Act, s88. There was nothing to be reviewed.
That left s81A as the appropriate statutory provision.
In my opinion, the appeal ought be dismissed.
File No FCA 46/2006
BERNARD WALKER v J & A FREEMAN BUILDING SERVICES
REASONS FOR JUDGMENT FULL COURT
BLOW J
8 November 2006
This appeal concerns the rights and liabilities of a worker and his employer pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), after the following sequence of events:
(i)The worker was injured at work, became totally incapacitated, claimed weekly payments, and commenced to receive them.
(ii)The worker recovered, and returned to his original work full-time, whereupon the weekly payments ceased.
(iii)As a result of the original injury, the worker's medical condition deteriorated to such an extent that he became partially incapacitated for work.
(iv)The worker provided his employer with a medical certificate indicating a partial incapacity for work. That certificate was provided more than 14 days after the expiration of the period of incapacity specified in the previous medical certificate provided by the worker to the employer.
(v)Pursuant to the Act, s69(13), the employer elected to treat the medical certificate that indicated a partial incapacity as a claim for compensation to which s81A applied.
(vi)Pursuant to the Act, s81A(1), the employer served the worker with written notice that it disputed liability to pay compensation, and referred the matter to the Workers Compensation and Rehabilitation Tribunal ("the Tribunal").
(vii)When the matter came before the Tribunal, the employer adduced evidence, in the form of a medical report, to the effect that the worker was partially incapacitated for work, though not to the extent asserted by the worker and his medical practitioner. The Tribunal rejected the contention that it was reasonably arguable that the employer was not liable to make weekly payments.
As a general rule, an employer is required to commence making weekly payments of compensation to a worker following the receipt of a claim for compensation: the Act, s81. Under s81A(1), if the employer "disputes liability to pay compensation by way of weekly payments", the employer may refer the matter to the Tribunal. 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: s81A(3)(a). But if the Tribunal "considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments", it must determine that compensation is not to be paid by the employer: s81A(3)(c).
When this matter was before the Tribunal, the learned commissioner proceeded on the basis that there was a difference between the parties as to the level of the worker's capacity for work; took it to be the law that such a difference could be a proper basis for the disputation of a claim under s81A; considered whether the employer had a reasonably arguable case concerning its liability to pay weekly payments; concluded that it did not; dismissed the employer's reference; and made an order under s81A(3)(a) that the employer make weekly payments to the worker.
The employer appealed from the decision of the Tribunal on the ground that the learned commissioner erred in law in determining that the employer did not have a reasonably arguable case. The employer's contentions appear to have concerned the learned commissioner's evaluation of the medical evidence. The learned primary judge took the view that the employer needed only to satisfy the Tribunal that there were reasonable grounds for a dispute as to the quantum of weekly payments; considered that the only conclusion available to the learned commissioner was that there were reasonable grounds for such a dispute; and concluded that the learned commissioner erred by evaluating the medical reports, resolving the inconsistencies between them, and concluding that the employer did not have a reasonably arguable case.
The learned commissioner and the learned primary judge both relied on a comment by Evans J in Haas Investments Pty Ltd v Viney [2001] TASSC 147 at par13 as authority for the proposition that the provisions of s81A are applicable in a case where the quantum of weekly payments is in dispute, and in which it is not argued, or not reasonably arguable, that the employer has some liability to make weekly payments. In that case the worker sought weekly payments on the basis that he was totally incapacitated, whereas the employer contended that the worker had become fit to return to work, though with light duties. At that time s81A(3)(c) required the Tribunal to determine that compensation was not to be paid by the employer if it considered that a genuine dispute existed "concerning the liability of the employer to pay compensation by way of weekly payments". Evans J took the view that it was necessary to decide whether the employer's rejection of the claim was "genuine, as distinct from insincere": par10. He concluded that there was a genuine dispute, and ordered that compensation not be paid. At par13 he said:
"If a worker makes a claim on the basis that he or she has been totally incapacitated during the period of the claim, it is in my view quite proper for an employer to dispute the claim on the basis that the worker was partially incapacitated during all or part of the period."
The principal controversy in that case seems to have concerned the question of the genuineness of the parties' dispute. There is nothing in the judgment to suggest that the worker in that case took any point as to the applicability of s81A in a partial incapacity case, or in a case in which only the quantum of weekly payments was disputed, or open to dispute.
The worker's contentions as to the scope of s81A raise questions as to the proper interpretation of its provisions. Is an employer who admits some liability to make weekly payments, but who disputes a liability to pay them in the sum claimed, an employer "who disputes liability to pay compensation by way of weekly payments" within the meaning of s81A(1)? If the Tribunal considers that, although there is no doubt that an employer has some liability to make weekly payments, a reasonably arguable case exists concerning the quantum of those payments, does it thereby consider "that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments" within the meaning of s81A(3)(c)?
In answering those questions, it is necessary to bear in mind the Acts Interpretation Act 1931, s8A, which requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not promote that purpose or object. In determining the purpose or object of the relevant provisions, it is appropriate to consider their history.
The Act repealed and replaced the Workers' Compensation Act 1927. The repealed Act provided no machinery for the expeditious resolution of claims for weekly payments, nor did it provide any machinery to relieve hardship to a worker if the making of weekly payments was delayed pending curial determination. The Act sought to overcome those deficiencies. In its original form, s81 required an employer who received a claim for compensation, wherever practicable, to commence making weekly payments within five working days after the receipt of the claim. Under s81(2), an employer who disputed "his liability to pay compensation by way of weekly payments" was required to notify the worker and refer the matter to the Workers Compensation Commissioner. Under s81(3), the commissioner was required to determine whether or not s81(1) should apply. If so, s81(3)(a) required the commissioner to make such determination as to the modification of s81(1) as he thought fit. Alternatively, if the commissioner considered that a genuine dispute existed "concerning the liability of the employer to pay compensation by way of weekly payments", s81(3)(b) required him to determine that s81(1) did not apply. On the making of such a determination, that subsection did not apply. The original s81(3)(b) is the ancestor of the present s81A(3)(c). There have been several amendments to the relevant provisions. The commissioner has been replaced by the Tribunal. The "genuine dispute" test has been replaced by the "reasonably arguable case" test. However I think it is necessary to consider the intention of Parliament in enacting the original ss81(2) and 81(3)(b) in order to determine whether the current ss81A(1) and 81A(3)(c) have any role to play when an employer's reasonably arguable case relates only to the quantum of the weekly payments that the employer is obliged to make.
I think it is important to consider the impact of a determination favourable to the employer, both under the original s81(3)(b) and under the current s81A(3)(c). Under each of those provisions, a determination favourable to the employer could only have one result: that the employer was not obliged to commence making weekly payments so long as the determination remained in force. The original s81(3)(b) did not empower the commissioner to determine that an employer was to make weekly payments at a high rate rather than a low rate, nor does the current s81A(3)(c) so empower the Tribunal. A determination favourable to the employer under the original s81(3)(b) could only be a determination requiring the employer to pay nothing, and that is now the situation under s81A(3)(c). That suggests that these provisions were and are concerned only with the question whether an employer is liable to make weekly payments at all, and not with any question as to the quantum of such weekly payments.
The consequences of a different interpretation would be absurd. According to the interpretation of s81A(3)(c) adopted by the learned primary judge and relied upon by the employer, if a partially incapacitated employee were to contend that he or she was entitled to weekly payments of compensation in the sum of $2,000, and the employer were to contend that the worker was entitled to weekly payments of compensation of only $1,900, and if the Tribunal were to consider that a reasonably arguable case existed concerning the liability of the employer to pay any more than $1,900, s81A(3)(c) would oblige the Tribunal to determine that compensation was not to be paid at all. The absurdity of such a result suggests that Parliament must have intended s81A(3)(c), and the original s81(3)(b) before it, to apply only to disputes as to whether there was a liability to pay any weekly payments at all, and not in relation to disputes as to the quantum of weekly payments.
In determining whether s81A applies to disputes as to the quantum of weekly payments, it is appropriate to consider what other provisions in the Act have any relevance to such disputes. Apart from certain penal provisions, the only provision in the Act enabling a dispute as to the quantum of weekly payments to be resolved is s42. Under s42(1) a claim for compensation may be referred to the Tribunal by an injured worker or the employer of an injured worker, amongst others. The Tribunal can then adjudicate upon the matter. (In the present case, the Tribunal has no jurisdiction to determine the quantum of weekly payments unless and until the worker's claim for them is referred to it under s42. Surprisingly, we were told at the hearing of this appeal that no s42 referral had yet been filed.)
The Act contains two penal provisions which apply to employers who fail to make weekly payments as required by it: ss81(2) and 81B(2). As I have said, s81(1) imposes a prima facie requirement on an employer who has received a claim for compensation to "commence making weekly payments" to the worker. It says nothing concerning the quantum of weekly payments, nor the requirements of the Act concerning them. Section 81(2) provides as follows:
"(2) An employer who fails to comply with subsection (1) is guilty of an offence.
Penalty:
Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues."
No doubt s81(2) does not apply when the employer has the benefit of a determination under s81A(3)(c). Where the quantum of weekly payments is genuinely disputed, I do not think s81 would be contravened if, for example, the employer were to commence making weekly payments at the rate it considered appropriate. The section is concerned with non-payment rather than underpayment.
The other relevant penal provision, s81B, reads as follows:
"81B (1) Weekly payments payable to a worker under this Act are payable on the days on which, and at the intervals, the worker is normally paid salary or wages by the worker's employer or, if the worker is no longer employed by that employer, on the days on which, and at the intervals, the worker would normally have been paid salary or wages by the employer if the worker had continued in that employment.
(2) An employer required to make weekly payments must do so in accordance with subsection (1).
Penalty:
Fine not exceeding 10 penalty units."
Although s81B focuses on the timing and frequency of weekly payments, I think it must be contravened whenever an employer is obliged to make weekly payments and makes none. An employer required to make weekly payments, who makes none at all, does not do so in accordance with s81B(1), and must therefore contravene s81B(2). Although the quantum of weekly payments is not the focus of s81B, it may be that an employer who underpays weekly payments does not make them in accordance with s81B(1) and therefore contravenes s81B(2).
When a worker is entitled to weekly payments of compensation, those payments have to be calculated in accordance with the provisions of s69. In a case of total incapacity, because of the wording of s69(1)(a), disputes can arise as to the amount of a worker's "normal weekly earnings", or as to the amount of the appropriate "ordinary time rate of pay". In cases of partial incapacity, because of the wording of s69(1)(b), disputes can arise as to the "amount that the worker is earning or would be able to earn in suitable employment or business" during a period of partial incapacity. Although disputes as to the quantum of weekly payments can be resolved by the Tribunal in proceedings initiated by a s42 referral, the Act does not contain any provisions empowering the Tribunal to make temporary orders for payments at a particular rate pending the determination of proceedings concerning the quantum of weekly payments. It seems to me that Parliament simply did not address the need for temporary orders in such cases. It seems to me that Parliament recognised a need for provisions to relieve hardship to workers who would otherwise receive no weekly payments while proceedings were pending, but did not go one step further and enact a provision to protect workers who might be underpaid, rather then unpaid, while proceedings were pending.
As a general rule, workers compensation legislation, as beneficial legislation, ought to be given an interpretation favourable to workers: McDermott v Owners of SS Tintoretto [1911] AC 35 at 46; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v Commonwealth (1988) 165 CLR 1 at 9; Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632 at 639 - 640; Dodd v Executive Air Services Ltd [1975] VR 668 at 679, 682; Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 33. The interpretation of s81A contended for by the worker in this case is one favourable to workers. According to that interpretation, an employer may avoid the obligation of s81 to commence making weekly payments only when that employer disputes liability to pay any weekly payments at all, and the Tribunal may determine the compensation is not to be paid by the employer only when it considers that a reasonably arguable case exists as to the employer having no liability to pay weekly payments at all. The competing interpretation, whereby the Tribunal could be obliged to determine that compensation is not to be paid to a worker in the appellant's position, is an interpretation favourable to employers.
Having regard to the matters I have referred to, I think that the word "liability" in s81A should be interpreted as referring to liability per se, as distinct from quantum. I think s81A(1), when it refers to an employer "who disputes liability to pay compensation by way of weekly payments" refers only to an employer who disputes liability to pay any weekly payments at all. I think s81A(3)(c) requires the Tribunal to determine that compensation is not to be paid only when it considers that a reasonably arguable case exists concerning the liability of an employer to pay any compensation by way of weekly payments at all. In taking a different view, I think that the learned primary judge and the learned commissioner both erred in law.
There is nothing in the material before this Court to suggest that, when this matter was before the Tribunal, either party quantified the amount that he or it contended was payable by way of weekly payments of compensation. The existence of a dispute as to the quantum of weekly payments appears to have been inferred from the fact that the parties relied on medical reports from doctors who expressed differing opinions as to the extent of the worker's incapacity for work.
The entitlement of a worker to weekly payments when partially incapacitated is governed by s69(1)(b). Section 69(1) reads as follows:
"69 (1) Subject to this section, 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 in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is, in addition to any lump sum that may be payable under section 71 or 72 in respect of that injury -
(a) in the case of the total incapacity of the worker for work, weekly rate payments equal to -
(i)the normal weekly earnings of the worker; or
(ii)the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity -
whichever is the greater; or
(b) in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker's normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."
Thus, when s69(1)(b) applies, the amount of a worker's weekly payments is quantified by reference to his or her earnings or potential earnings, and not directly by the extent of his or her incapacity.
The employer's referral to the Tribunal, which was signed by its solicitors, stated that the employer disputed "any liability to pay compensation by weekly payments". The solicitors indicated that the employer contended that "the issue of the worker's capacity for work and thus what weekly payment, if any, the worker is entitled to forms the basis of a reasonably arguable case finding." (My emphasis.) Since the employer purported to dispute any liability to pay weekly compensation at all, it was appropriate for the Tribunal to consider the referral pursuant to s81A. Once the Tribunal rejected the contention that the employer had a reasonably arguable case that it was not liable to make weekly payments, s81A(3)(c) did not apply, for the reasons I have stated. The Tribunal was obliged to conclude that weekly payments should be made and, pursuant to s81A(3)(a), to "order the employer to make weekly payments from such date as the Tribunal determines". Apparently no order was sought as to the quantum of such weekly payments since the dispute as to quantum had not been referred to the Tribunal under s42.
For very different reasons, the learned commissioner made an order under s81A(3)(a) "that the employer make weekly payments to the worker, such payments to be in accord with the Act and to date from 14 November 2005." The learned commissioner made the right order for the wrong reasons. That order should not have been disturbed. The learned trial judge should have dismissed the appeal from that order.
When this matter was before the Tribunal, no point was taken as to s81A(3)(c) being inapplicable when only quantum was in dispute. That was argued for the first time before the learned primary judge. However I do not think that the failure to take that point before the Tribunal should be an impediment to the success of the present appeal. The issues before the Tribunal were not confined by pleadings. The employer is not in a position to claim any prejudice, except perhaps as to costs, since there is no reason to think that the taking of the point before the Tribunal might have resulted in it conducting its case differently. Subject to questions of prejudice, it has long been recognised in appeals arising from common law actions that a respondent to an appeal can support a judgment obtained at first instance on any good legal ground, even though that ground was not relied on in the court below: NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 at 282. Consistently with that principle, the worker was entitled to take the point as to s81A(3)(c) for the first time when he was the respondent to the appeal from the Tribunal that was heard by the learned primary judge.
I would allow the appeal, set aside the decision of the learned primary judge, and dismiss the appeal from the decision of the Tribunal. Those orders would result in the revival of the Tribunal's order. That order is of course silent as to the quantum of weekly payments. The hearing and determination of this appeal has not brought the parties any nearer to the resolution of their dispute as to the quantum of those payments.
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