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Walker v J & A Freeman Building Services

Walker v J & A Freeman Building Services

Case [2006] TASSC 90 8 November 2006

Claims for Compensation

Incapacity

Compensatory Damages

Workers Compensation Law

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[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v J & A Freeman Building Services

Details

AGLC: Walker v J and a Freeman Building Services [2006] TASSC 90
Case: [2006] TASSC 90
Decision Date: 8 November 2006

CaseChat Overview and Summary

The case of Walker v J & A Freeman Building Services was heard in the Workers Compensation Tribunal. The dispute between the parties centred around the claimant's eligibility for compensation under the Workers Compensation Act. The claimant, Walker, sought compensation for an injury sustained during the course of his employment with the respondent, J & A Freeman Building Services. The employer disputed the claim, arguing that the injury did not arise from work-related activities.

The legal issues before the court were whether the employer's dispute related to the extent of the claimant's incapacity or the amount of compensation payable, or if it questioned the liability to pay compensation altogether. The court had to determine if the employer's reference of the notice disputing the claim was valid under the Act, and whether the dispute pertained to the preliminary requirement of compensation eligibility or to the specifics of the claim itself.

The court found that the employer's dispute did not challenge the basic eligibility for compensation but rather questioned the extent of the claimant's incapacity and the appropriate amount of compensation. The employer's actions were held to be a valid dispute under the Act, as it related to the specifics of the claim rather than the liability to pay compensation. The court ruled that the employer's referral of the notice was procedurally correct and did not undermine the claimant's right to seek compensation.

The final orders of the court affirmed that the dispute related to the extent of the claimant's incapacity and the amount of compensation payable. The court instructed the parties to proceed with the claim on these terms, ensuring that the dispute was addressed within the scope permitted by the Workers Compensation Act.

Orders