Workers Compensation Update

In this edition we address:

• Section 81A Referrals – A reminder that when certifying a period of incapacity, the period of incapacity must be fixed, definite and certain. If this requirement is not met, then it is unlikely that the relevant certificate can be used to rely on section 69(13) – Mat Wilkins and Will Geason.
• A decision from the Full Court of the Supreme Court of Tasmania about a man who broke his leg while walking his dog, and how the Court decided that the man was entitled to workers compensation – Mat Wilkins, Tom Pilkington and Hari Gupta.

Oak Tasmania Pty Ltd t/as Oak Possability v D [2022] TASCAT 136 (18 November 2022)

Background

The Worker had made a claim for compensation in respect of injuries occurring in the course of her employment in November 2021. The claim for compensation was accepted by the Employer and payments of compensation commenced in accordance with the Employer’s obligations under the Act.

In support of her claim, the Worker continued to provide workers compensation medical certificates certifying her ongoing incapacity.

On 18 May 2022, the Worker provided a continuing medical certificate which certified her as having a partial incapacity for the period specified as 17 May 2022 to 14 June 2022.

The next certificate received by the Employer was dated 14 June 2022, and again certified the Worker as having a partial incapacity for work from 14 June 2022 but did not provide any end date for that period of incapacity. A further medical review date was set for 14 July 2022.

A further certificate was then provided to the Employer dated 12 July 2022, which again failed to specify a period of incapacity and instead certified the worker as being incapacitated from 12 July 2022, with no end date. A review date was again provided of 12 August 2022.

The Worker then provided a further certificate to the Employer dated 12 August 2022. At that point, the Worker was certified as having a total incapacity for the period of 12 August 2022 to 9 September 2022.

On receipt of the 12 August 2022 certificate, the Employer treated that certificate as a claim to which section 81A of the Act applies and disputed liability to make ongoing payments of compensation to the Worker in respect of her claim.

In doing so, the Employer relied on section 69(13) of the Act, which allows an employer to treat the provision of a medical certificate as if it were a claim for compensation in circumstances where there is a gap of more than 14 days between the provision of that certificate and the expiration the last specified period of incapacity in a pervious certificate.

The issue

The issue before the Tribunal was whether there was in fact a gap in certification as required by section 69(13), or whether a specified period of incapacity could be inferred from certificates of 14 June 2022 and 12 July 2022, despite the fact that neither one of those certificates provided a specific period of incapacity on its face.

What was argued

The Worker submitted that because each of the 14 June 2022 and 12 July 2022 certificates had a specified review date on them, it was able to be inferred that a period of incapacity had in fact been specified, being the date of ongoing incapacity to the date of the next review.

For the Employer, it was argued that a “specified period” is a period which is fixed, definite and certain. It was submitted that in circumstances where there is no certification as to the period of incapacity on the face of a certificate, and as such that period must be inferred, then a certificate cannot be considered to have provided a specified period of incapacity.

Decision of the Tribunal

Citing a previous decision of the Supreme Court of Tasmania in McKenzie v State of Tasmania [2011] TASSC 42, Deputy President Clues accepted that a specified period of incapacity means a period that is fixed, definite and certain.

Deputy President Clues also accepted that the Worker had been certified as partially incapacitated for work in the certificate dated 18 May 2022 for the specified period of between 17 May 2022 and 14 June 2022.

The Deputy President agreed with the Employer’s submission that each of the following two certificates dated 14 June 2022 and 12 July 2022 had failed to provide a fixed, definite and certain period of incapacity, and as such there was no specified period of incapacity on those certificates.

As a result, the Deputy President held that there had been no specified period of incapacity since the certificate of 18 May 2022, and as such on receipt of the 12 August 2022 certificate, there was a gap of greater than 14 days. It was therefore open to the Employer to rely on section 69(13) to dispute ongoing liability once it received that 12 August 2022 medical certificate.

The learning point

The Tribunal’s decision reaffirms that Employers and insurers should pay close attention to what is actually being certified in all workers compensation medical certificates, and in particular whether there is any specific period of incapacity at all.

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Nazar v Hydro Electric Corporation [2022] TASFC 11 (6 December 2022)

The background

This case is about Mr Buddy Nazar, a former employee of Hydro Electric Corporation (Employer). Mr Nazar was employed by the Employer as a relief area coordinator.

Mr Nazar was asked by the Employer to be stationed in Tullah, and the Employer provided accommodation for his stay in Tullah. Mr Nazar had his partner and dog staying with him.

On 25 May 2018, while on a walk with his partner and dog, Mr Nazar slipped on a log and broke his leg. At time of the incident, Mr Nazar was on call, which meant that if he was contacted, he had to report to the worksite within 15 minutes.

Mr Nazar claimed workers compensation from his Employer as he was in Tullah because the Employer had asked him to be there, and Mr Nazar was being paid an availability / on call allowance when he injured himself.

The issue in the Tribunal

The Employer argued that Mr Nazar’s injury did not arise out of or in the course of his employment with the Employer.

Given the nature of Mr Nazar’s injury, the legal question for whether he should receive compensation was:

Whether Mr Nazar’s injury arose out of or in the course of employment?

This legal question is considered to have two limbs.

The first limb is whether the injury arose out of employment. This is seen as a “causal connection” test. For example, an injury would be considered to have arisen out of employment if a chef, while cooking a dish, burns herself. Another example would be a hairdresser who, while cutting a customer’s hair, cuts himself.

The second limb is whether the injury arose in the course of employment. This is seen as a “temporal connection” test. This test is more complicated, and the answer is not always clear. For example, if an injury happens during a worker’s normal working hours at work, then it will normally be clear that the injury happened in the course of employment. A complication arises when a worker is not necessarily working in the usual sense but is asked to be available for work during a particular period or is asked to wait somewhere for further instructions.

In this case, it was clear that Mr Nazar did not break his leg while actually working. Mr Nazar was claiming compensation because the circumstances in which he broke his leg, according to him, were related to his employment.

The Tribunal accepted Mr Nazar’s arguments and decided that his injury arose in the course of his employment.

The Supreme Court decision

The Employer appealed against the Tribunal’s decision.

It is well accepted that that if an injury happens outside of a worker’s actual working hours, the question of whether the injury arose in the course of employment is answered by considering the place where and activity during which, the injury occurred. On this point, the relevant inquiry is whether an employer induced or encouraged a worker to be in a particular place or engage in a particular activity.

Consequently, the argument that often arises is whether a case is a ‘place’ case or an ‘activity’ case.

As it can be imagined, a worker could be asked to wait at a particular place for work, say a cabin, and if the cabin collapses and injures the worker, then the worker is most likely entitled to compensation.

On the other hand, if an employer asks a worker to attend a networking event, and during that event, the worker is injured, then the worker is likely to be entitled to compensation because they were injured during an activity which was encouraged by the employer.

Of course, it could also be said that the networking event was a ‘place’ case. In the Supreme Court, Justice Geason made some important observations. One of those was that a case could be both a ‘place’ case and an ‘activity’ case.

In Mr Nazar’s case, the Supreme Court decided that his claim was an activity case as he injured himself during a recreational activity i.e., going on a walk with his partner and dog. The Supreme Court decided that the relevant event i.e., Mr Nazar’s walk and subsequent slipping on a log were activities not induced or encouraged by the Employer.

As such, the Employer won the appeal in the Supreme Court.

The Full Court decision

Mr Nazar challenged the Supreme Court’s decision in the Full Court of the Supreme Court.

The Full Court of the Supreme Court, made up of three judges, heard the appeal. The judges were Chief Justice Blow, Justice Estcourt and Justice Jago.

It was unanimously decided that Mr Nazar’s injury occurred in the course of his employment.

The Chief Justice was satisfied that Mr Nazar was injured when he was performing duties imposed by his employment contract as he was complying with what was required of him by being in Tullah, available for call outs, and the associated obligations.

The Full Court considered that the unexceptional nature of the activity during which Mr Nazar was injured did not take him outside the scope of employment. The Full Court also took into account the fact that Mr Nazar had to be in Tullah because of work. There were clear restraints on where he could be and what he could do.

As for the issue of whether this was a ‘place’ or ‘activity’ case, it appears that the Full Court was divided over whether Mr Nazar’s claim fell into a ‘place’ case or ‘activity’ case, but this issue was ultimately immaterial.

The learning point

As mentioned above, the test for whether a worker is injured in the course of their employment is more complicated than it might appear at first blush.

The facts were simple. A man was walking his dog, he injured himself and he claimed compensation. However, the legal issues were not so simple. This claim went from the Workers Rehabilitation and Compensation Tribunal of Tasmania (as it was referred to then) to the Full Court of the Supreme Court of Tasmania.

Whether an injury arises in the course of employment requires careful consideration of time, place, practice, circumstances and the general and specific nature, terms and conditions of employment. It seems that it is also important to consider whether the relevant activity which causes an injury, is unexceptional.

It is important to seek legal advice on such complicated legal issues.