In this edition, we address:
- A recent decision from the Tasmanian Civil and Administrative Tribunal confirming that where there has been a gap in certification under section 69(13), there is no liability to immediately recommence weekly payments – Anna Di Carlo and Hari Gupta.
P. v The State of Tasmania (Department for Education, Children and Young People) [2023] TASCAT 174 (3 October 2023)
In this edition of our workers compensation case commentary, we review a recent decision from the Tasmanian Civil and Administrative Tribunal (Tribunal).
In P v DECYP, the worker sought a determination on whether the employer should have recommenced making weekly payments to them after giving the employer a further workers compensation medical certificate 14 days after the previous certificate expired.
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.
The Tribunal ordered on 7 August 2023 that there was reasonably arguable case, and that weekly payments would cease. However, the worker asked the Tribunal to determine whether weekly payments should have resumed when they presented their certificate to the employer on 14 June 2023.
The worker’s case
The worker’s case was that since they had provided their employer with a further workers compensation medical certificate, their employer had to pay weekly payments of compensation for the period covered after the gap of more than 14 days. This is because all a worker needs to do to continue to receive weekly payments of compensation (where foundational liability is accepted) is provide workers compensation medical certificates supporting incapacity.
The employer’s case
The employer’s case was that where there is a gap in certification, the further certificate is treated as a claim under section 81A. The Tribunal went on to find that the other sections under Division 1 of Part VII of the Act do not apply to that certificate, including section 81.
For the next part of this article, we will refer to the further certificate (i.e., the certificate which closes the gap under section 69(13)) as the ‘section 69(13) claim’.
Decision
Previously, it was a fairly common view in the industry that where a claim had been accepted or deemed to be accepted by an employer, weekly payments are held in abeyance until a valid certificate is provided. The Tribunal accepted this.
The Tribunal interpreted previous authorities to mean that only section 81A applies to the section 69(13) claim, and the other sections from Division 1 of Part VII of the Act do not apply such as section 81 as to commencing weekly payments.
Consequently, the Tribunal decided that there is no liability or obligation to commence or recommence weekly payments where there is a gap in certification until or unless liability is accepted, deemed to be accepted or determined in favour of the worker. In a case where the employer elects to treat the certificate as a section 69(13), it does not have a liability to recommence weekly payments.
Learning points
In a situation where there is a gap of more than 14 days between certificates, there is no liability to immediately recommence weekly payments on the presentation of a section 69(13) claim.
While workers are obliged to provide workers compensation medical certificates in a timely manner, their failure to do so means employers do not have a liability to make payments under section 69(1) once the period in the last certificate expires. Further, they are not obliged to commence weekly payments of compensation until liability is accepted or there is a determination under section 81A by way of section 69(13).
This also applies to scenarios where liability was previously deemed to be accepted and the worker was paid weekly payments until the period in the last certificate expired.
More information
If you have any questions, please do not hesitate to contact us.
Tom Pilkington
Principal
M: 0417 669 478
E: tpilkington@pageseager.com.au
Hari Gupta
Senior Associate
T: (03) 6235 5133
E: hgupta@pageseager.com.au
Anna Di Carlo
Lawyer
T: (03) 6235 5141
E: adicarlo@pageseager.com.au
