To pay or to continue to pay, that is the question

01 August 2022

Following an independent medical report stating a worker was fit to return to normal duties, an employer applied to the Tribunal for a determination allowing it to cease ongoing payment of weekly compensation.

The employer was found to have a reasonably arguable case. However, the Supreme Court tells us that argument is better served under another provision.

In issue

  • The issue in this appeal was ‘whether the procedure established by s81A [of the Workers Rehabilitation and Compensation Act 1988 (Tas) (‘the Act’)] is available when the employer does not dispute an initial entitlement to compensation, but disputes liability to make continuing payments of compensation after a particular date’.

The background

An employee made a claim for workers’ compensation in December 2020, and was certified as unfit for duties at work, due to a stress condition. The employer initially accepted liability for the claim and the worker was paid weekly payments. The worker was then assessed by an independent medical examiner at the request of the employer and was found to be ‘wholly or substantially recovered’. So the employer proceeded to dispute the claim under s81A on the basis that there was no liability to pay compensation to the worker given that the worker, on the basis of the medical evidence, had wholly or substantially recovered from his injury.

The Tribunal’s decision

In March 2021, the employer’s insurer referred to the Workers Rehabilitation and Compensation Tribunal (‘the Tribunal’) for a determination under s81A of the Act and an order was made that the employer had a reasonably arguable case and could cease to pay weekly compensation to the worker.

The issues on appeal

On appeal, the employer argued for a strict interpretation of the wording in the provision which would allow ‘An employer who disputes liability to pay compensation (our emphasis) by way of weekly payments for an injury referred to in s81(1)’ (i.e. any employer), to make an application under the provision. This inferred definition would enable the employer to dispute the claim to weekly compensation payments under s81A, even though it accepted liability at first instance, following receipt of the independent medical report after the initial weekly compensation claim had been paid.

The appellant argued that this was not the appropriate provision in the legislation for the employer to invoke where a compensation claim had already been accepted and payments had commenced, and that the employer ought to have invoked s86 of the Act instead.

The decision on appeal

The Court unanimously agreed there were a number of contextual features of the legislation to rebut the employer’s claims that s81A is available only in relation to disputes as to liability to commence making compensation payments, and not in relation to disputes as to their continuation (our emphasis). The legislative history, alongside the purpose of other provisions within the Act, result in s81A being solely applicable to disputes involving the commencement of compensation. The appellant's contention was that the legislative intent of the Act is that if an employer has evidence that a worker has recovered from his or her injury, the appropriate recourse is to invoke the procedure contained in s86 of that Act, not through s81A. The Court agreed with this proposition.

As such, the Court said that the Tribunal exercised power beyond the scope of its jurisdiction when it made an order extending s81A(3)(c) to the employer in this case.

Implications for you

The main takeaway from this decision, is that the employer can no longer under a s81A dispute based upon a new claim for compensation, with the 84 day time limit, use an argument that the worker has wholly or substantially recovered from his or her injury and therefore there is no liability to pay compensation under the Act. The Court has now informed us that the correct avenue to use, if a worker has recovered from an injury, is better served under the provisions of s86 in terminating the worker’s weekly payments, and that can happen at any time, even if it is within 84 days of the claim being made.

Alasi-Jones v State of Tasmania [2021] TASFC 13

Melinda Bird
Hayden Waterlow

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