In this edition, we address:
- A recent decision from the Supreme Court of Tasmania confirming that where there has been a gap in certification under section 69(13), employers must recommence weekly payments, but only from the date on which the section 69(13) claim was received – Anna Di Carlo and Hari Gupta.
Pearson v State of Tasmania [2024] TASSC 41 (5 August 2024)
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.
Click here for a link to our commentary on the Tribunal’s decision.
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 workers’ 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.
What happens when a section 69(13) claim is backdated?
In this case, the relevant certificate was dated 14 June 2023. However, the doctor issuing the certificate had backdated it to 18 May 2023 and it was valid until 12 July 2023.
However, the Court’s decision is clear. The worker’s entitlement to weekly payments is revived but only from the day the relevant certificate (i.e., the section 69(13) claim) is received by the employer.
The Court said that weekly payments were to be made from 14 June 2023 (i.e., the date the employer received the certificate) and not from 18 May 2023 (which is when the certificate was effective from).
As such, this may alleviate employer’s and insurer’s concerns about receiving significantly backdated certificates. On one hand, the Court’s ruling sheds light on the concern about the date from which weekly payments need to be made in such situation. On the other hand, in claims where liability was accepted and also not subsequently disputed, it may be that an employer may need to back-pay for any period before the date on which the section 69(13) claim was received.
For example, as it stands, the Court said weekly payments had to be made from 14 June 2023 (the date the section 69(13) claim was made). This means weekly payments need not be made for the period from 18 May 2023 (the doctor backdated the certificate to this date) to 13 June 2023. However, it does seem to go against the beneficial nature of the legislation for a worker to not receive compensation for the period from 18 May 2023 to 13 June 2023.
Learning points
There are three learning points.
The first point favours workers. 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 from the day it has been served with the section 69(13) claim.
The second point clarifies liability concerns. Resuming weekly payments after a gap in certification will not be considered to be an admission of the employer’s ongoing liability (or any liability at all depending on the circumstances).
The third and final point favours employers. It seems that the Court is saying that while liability is revived, an employer need not pay weekly payments for the entire period certified in the section 69(13) claim. The employer is only liable to pay weekly payments from the date it receives the section 69(13) claim. As stated at paragraph 21 of the decision, “… the employer became liable to make weekly payments to the worker from the time it received the medical certificate of 14 June 2023.” But we do recommend caution in applying this approach to every claim, especially where liability was never disputed.
More information
If you have any questions about this commentary, please do not hesitate to contact us.
| Tom Pilkington Principal M: 0417 669 478 E: tpilkington@pageseager.com.au |
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| Hari Gupta Senior Associate T: (03) 6235 5133 E: hgupta@pageseager.com.au |
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| Anna Di Carlo Associate T: (03) 6235 5141 E: adicarlo@pageseager.com.au |
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