In this edition, we address:
- A recent decision from the Supreme Court of Tasmania confirming that the relevant period in section 69(14) in relation to a worker’s incapacity for work need not be certified by a medical practitioner – Anna Di Carlo and Hari Gupta
Menzies v Hays Specialist Recruitment (Australia) Pty Ltd [2023] TASSC 30 (29 August 2023)
In this edition of our workers compensation case commentary, we review Menzies v Hays Specialist Recruitment (Australia) Pty Ltd [2023] TASSC 30 (29 August 2023) (Menzies v Hays).
In Menzies v Hays, the worker, Mr Scott Bradley Menzies, appealed against the Tribunal’s decision to refuse the worker’s application for interim weekly payments of compensation.
In the first instance decision in the Tribunal, the Tribunal dismissed the worker’s application for interim payments. One of the reasons was because of the way the Tribunal assessed the appropriate weekly payment rate meant it was low and comparable to a Centrelink benefit.
Background
Mr Menzies commenced his employment with the employer on 9 March 2021. Mr Menzies developed lower back pain and ceased work because of the pain on 23 May 2021. He had only worked for the employer for 11 weeks.
Mr Menzies obtained his first medical certificate on 23 August 2021, certifying him as incapacitated for work from 23 August 2021. Mr Menzies was still employed, despite his last day at work being 23 May 2021.
The focus of the appeal to the Supreme Court appeared to be whether “commencement of the period of incapacity” means the period of actual incapacity as a matter of fact, being the day Mr Menzies stopped work, or the period of certified incapacity in accordance with the initial worker’s compensation medical certificate.
Decision
Workers are paid weekly compensation either based on their normal weekly earnings or their ordinary time rate of pay. Ordinary time rate of pay was not relevant in this case.
Normal weekly earnings are based on “relevant period” which is a term defined in subsection 69(14). This decision now confirms that the ‘relevant period’ for the purposes of section 69(14) is determined by looking at when a worker was actually unfit for work instead of relying only on periods covered by medical certificates.
In this case, the worker argued that the total amount earned by him in his brief employment should be divided by 11 weeks (from the day he started work to when he stopped work because of his injury).
On the other hand, the employer argued that the total amount earned by him in his brief employment should be divided by 24 weeks (from the day he started work to when his doctor certified him as incapacitated for work).
The Supreme Court preferred the worker’s argument. In deciding the matter, the Supreme Court had regard to the beneficial nature of the legislation (please see below).
Learning Points
The main takeaway is for employers, insurers and other stakeholders who are responsible for the payment of weekly compensation.
While it important to pay attention to workers compensation medical certificates, and while it is essential that a worker’s incapacity is supported by a valid workers compensation medical certificate, when it comes to identifying the “relevant period” for calculating a worker’s normal weekly earnings, the focus should be on the worker’s incapacity as a matter of fact rather than simply relying on the period for which the worker’s incapacity is certified by a doctor.
You can also find our commentary on the beneficial nature of the legislation here.
More information
If you have any questions, please do not hesitate to contact us.
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
