An employer was not liable to pay weekly payments of compensation to a worker during a period of incapacity certified by a medical certificate in dispute under section 69(13) of the Act.
In issue
- Whether the employer was liable to pay weekly payments of compensation during the period of incapacity certified by a medical certificate which was provided more than 14 days after the expiry of an earlier workers’ compensation medical certificate.
The background
The worker made a claim for workers’ compensation in respect of a stress and exhaustion-related injury she suffered on 14 November 2022. The employer did not elect to dispute the claim pursuant to section 81A of the Workers’ Rehabilitation and Compensation Act 1988 (‘the Act’) and began making weekly payments of compensation to the worker.
The worker provided continuing workers compensation medical certificates certifying her as totally incapacitated for work until 18 May 2023. Upon the expiry of these certificates, there was a gap in medical certificates until the worker provided a certificate on 14 June 2023, which certified the worker as incapacitated from 18 May 2023 to 12 July 2023.
Given the gap in medical certificates, the employer elected, pursuant to section 69(13), to treat the certificate on 14 June 2023 as a new claim for compensation to which section 81A applies and referred the matter to the Tribunal.
On 7 August 2023 the Tribunal determined the certificate dated 14 June 2023 was a claim for compensation to which section 69(13) applied and that the employer had a reasonably arguable case, ordering that compensation payments were not to be made to the worker.
The worker appealed this decision, arguing that a certificate to which section 69(13) applies is nevertheless a certificate, pursuant to section 69(1), which establishes foundational liability for the worker’s claim for compensation and creates an obligation on the employer to commence making weekly payments. The worker asserted that the termination of the employer’s obligation to make payments took effect from the date of the decision on 7 August 2023.
The decision at trial
Deputy President Clues rejected the worker’s arguments, finding that the employer was not liable to pay weekly payments of compensation during the period of certified incapacity on the disputed medical certificate dated 14 June 2023.
The Deputy President accepted that when an initial claim for compensation has been accepted, or deemed to be accepted, by an employer, weekly payments are held in abeyance during a gap in certification. However, this did not apply in the present circumstances where a gap in certification attracted the operation of section 69(13).
Given the plain wording of section 69(13) means a medical certificate covered by the section is treated as a claim for compensation to which ‘s 81 alone applies’, it followed that sections 81(1) and 81AB did not apply and thus there was no obligation on the employer to commence or resume weekly payments.
The Deputy President held that the merits of the worker’s entitlement to compensation were now to be determined on her section 42 referral to the Tribunal.
Implications for you
This decision clarifies that there is no liability imposed on employers to commence weekly payments upon receiving a medical certificate to which section 69(13) applies.
Previous decisions, such as Chief Commissioner Carey’s findings in Dadas Pty Ltd trading as Pane Cucina Bakery v N [2006] TASWRCT 50, have suggested a section 69(13) claim is governed only by section 81A and therefore that there is no obligation on employers to commence weekly payments upon receiving such a claim.
However, this decision confirms that this is indeed the effect of section 69(13), providing certainty for employers placed in a position where a worker provides a medical certificate after a gap in certification of more than 14 days.
P v The State of Tasmania (Department for Education, Children and Young People) [2023] TASCAT 174.
