Full Court confirms weekly payments must resume following a gap in certification
In this edition, we discuss a recent decision from the Full Court of the Supreme Court of Tasmania confirming that where there has been a gap in certification under section 69(13), employers must recommence weekly payments, and pay for the certified period even if it relates to a retrospective period.
State of Tasmania v Pearson [2026] TASFC 11 (6 August 2026)
The litigation history
There are three reported decisions in this matter.
The first decision is P. v The State of Tasmania (Department for Education, Children and Young People) [2023] TASCAT 174 (3 October 2023). This 2023 decision is from the Tasmanian Civil and Administrative Tribunal and the issue here was whether the employer had to recommence weekly payments.
The second decision is Pearson v State of Tasmania [2024] TASSC 41 (3 September 2024). This 2024 decision is from the Supreme Court of Tasmania where the worker appealed against the Tribunal’s 2023 decision. The single judge in the Supreme Court initially overturned the Tribunal’s decision and held that the employer had to recommence weekly payments from when it received the relevant medical certificate when there was a gap in certification. However, His Honour varied his order to say that not only did the obligation to recommence weekly payments enliven once a further certificate was served, but the period for which weekly payments had to be paid included the backdated or retrospective period i.e., it included the certified period of incapacity from before the relevant certificate was given to the employer.
The third decision is State of Tasmania v Pearson [2026] TASFC 11 (6 August 2026). This 2026 decision is from the Full Court of the Supreme Court of Tasmania. This proceeding was an appeal by the employer against the single judge’s decision. The Full Court (made up of three judges) dismissed the employer’s appeal.
As such, the current law is that:
- When an employer is given a further certificate of incapacity by an injured worker after a gap in certification, the employer is obliged to recommence weekly payments.
- When the further certificate of incapacity is backdated, the employer is obliged to pay weekly payments for that backdated, retrospective period.
As the Full Court said, “a gap in certification of more than 14 days does not affect or interfere with the obligation of the employer to comply with s 69(1) by making weekly payments for incapacity subsequently certified by a medical certificate.”
Background
The worker alleged they became incapacitated for work on 14 November 2022 due to ‘stress and exhaustion’. The employer accepted the worker’s claim, and the worker provided medical certificates certifying them as totally incapacitated until 18 May 2023.
The next medical certificate was provided to the employer on 14 June 2023, certifying the worker as incapacitated for any work from 18 May 2023 until 12 July 2023.
Because there was a gap of more than 14 days between 18 May 2023 and 14 June 2023, the employer elected to dispute liability through section 69(13) by treating it as a claim for compensation to which section 81A applied.
In this commentary, we will refer to the second certificate, to which section 69(13) applies, as a “section 69(13) claim”.
The question for the Tribunal, and then the Supreme Court, to determine, was whether weekly payments should have resumed when the worker served the new medical certificate on the employer on 14 June 2023.
The Tribunal’s decision
The Tribunal determined that the employer did not have to commence or recommence (depending on the circumstances) weekly payments where there had been a gap in certification.
The appeal to the Supreme Court
The worker appealed against the Tribunal’s decision about their entitlement to weekly payments, arguing that when they served the section 69(13) claim, that this was a medical certificate for the purposes of section 69(1) and that they are entitled to weekly payments until there was a determination by the Tribunal that compensation could stop.
One of the things the employer argued was that the resumption of payments, when a section 69(13) claim is made, would amount to an admission of liability.
The Supreme Court’s decision
The Supreme Court determined that the employer’s liability to make weekly payments was revived when it received the section 69(13) claim.
This was based on the principle that the obligation to pay compensation had simply been suspended while no further workers compensation medical certificates were given to the employer.
The Court also said that because the employer has no choice in resuming weekly payments, that the resumption of weekly payments after receiving a section 69(13) claim could not be seen as an admission of ongoing liability.
The Court reiterated that workers compensation legislation is beneficial and should be interpreted in a way that supports a worker’s rights to compensation. It may seem unfair for a worker to wait for at least 84 days for 12 weeks of weekly payment, and that too, if the worker’s claim is not disputed.
The Full Court of the Supreme Court’s decision
The employer appealed the decision to the Full Court arguing that a payment of compensation in respect of the period covered by the certificate dated 14 June 2023 would amount to an admission of liability, and that the Act should therefore not be construed so as to require payments of weekly compensation to be made upon the presentation of a medical certificate to which section 69(13) applies.
The Full Court disagreed that the operation of the Act removes the protection afforded to payments made while awaiting an outcome in a section 81A referral by preventing such payments from being construed as an admission of liability.
What happens when a section 69(13) claim is backdated?
There are three learning points:
- The first point favours workers; the class of people the legislation is intended to benefit. In a situation where there is a gap in certification of more than 14 days between medical certificates, the employer’s liability to make weekly payments recommences once it is given a section 69(13) claim.
- The second point clarifies liability concerns for insurers. Resuming weekly payments after a gap in certification will not be considered an admission of the employer’s ongoing liability (or any liability at all depending on the circumstances).
- The third point clarifies the legal position on the retrospective period covered by such certificates. A gap in certification of more than 14 days does not affect or interfere with the obligation of the employer to comply with section 69(1) by making weekly payments for incapacity subsequently certified by a medical certificate. This obligation applies irrespective of the fact that the period of incapacity may relate to a retrospective period, or that the employer’s right to elect to dispute liability under section 69(13) has arisen or actually been exercised.
For injured workers, it is well understood that there are often good reasons why subsequent workers compensation medical certificates are provided late. In such cases, those injured workers’ entitlements are usually unaffected, and they are supported in the usual manner.
For insurers and employers, whilst the receipt of an unexpected medical certificate which is served after a significant period of time creates significant, retrospective, monetary liability, it is always worth seeking legal advice on whether there is a factor in your claim which warrants an argument against the current legal position.
