Workers Compensation Update – 3 November 2021

In this Edition

In this edition, we address the implications of a recent decision from the Full Court of the Supreme Court of Tasmania which dealt with an appeal from the Workers Rehabilitation and Compensation Tribunal.

If you have any queries or would like further information regarding this update, please contact:

Mat Wilkins
Principal
M: 0419 106 417
E: mwilkins@pageseager.com.au

Tom Pilkington
Principal
M: 0417 669 478
E: tpilkington@pageseager.com.au

Hari Gupta
Associate
T: (03) 6235 5133
E: hgupta@pageseager.com.au

 

Alasi-Jones v State of Tasmania [2021] TASFC 13 (27 October 2021)

The Background

On 22 December 2020, Mr Alasi-Jones made a claim for compensation against his employer (the State of Tasmania) because of work-related stress.

Mr Alasi-Jones’s employer filed a section 81A referral under the Workers Rehabilitation and Compensation Act 1988 (Act) to dispute liability for the claim. The grounds for the dispute were:

  • The worker does not presently suffer any compensable injury or disease”; and
  • The worker is not incapacitated for work.

The employer was relying on a medical report of a psychiatrist, Dr Peter Miller. Dr Miller’s opinion was that Mr Alasi-Jones had the capacity for working his usual hours and duties and Mr Alasi-Jones had wholly or substantially recovered from the effects of any work injury he suffered.

On 31 March 2021, the Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal of Tasmania decided that a reasonably arguable case exists concerning the employer’s liability to make weekly payments because Dr Miller said Mr Alasi-Jones had wholly or substantially recovered from the effects of any work injury suffered and that he was not incapacitated for his usual duties and hours.

The Appeal

The appeal was against the Chief Commissioner’s finding that the employer could rely on the ground that Mr Alasi-Jones could have wholly or substantially recovered and there was no liability to continue to pay compensation.

Generally, an employer can apply for an interim order to stop workers compensation on the basis that it is reasonably arguable that ultimately, the employer would be able to successfully defend the claim for workers compensation. This application must be made within 84 days of the making of the claim for workers compensation.

The appeal was on a question of law and whether employers can rely on such a ground to dispute liability in a section 81A referral. The critical issue turned out to be the difference between disputing liability and disputing ongoing liability.

The Legal Issue

The legal issue can be understood as follows:

Can section 81A be used to dispute liability where the essence of the dispute is not that there was never a liability to pay compensation, but rather that there is no longer any liability to pay compensation?

The Decision

In its decision delivered on 27 October 2021, the Full Court allowed the appeal and set aside the Chief Commissioner’s decision.

Estcourt and Brett JJ agreed with Blow CJ in that section 81A can only be used if an employer is disputing liability to pay any compensation. This is different from disputing liability to continue to pay compensation.

The Chief Justice outlined a few contextual features of the Act to support the view that section 81A relates to disputes about liability to commence compensation payments and did not relate to disputes about liability to continue to pay compensation (when section 69(13) did not apply).

Besides section 81A, another key section of the Act that was discussed in this decision is section 86, and in particular, paragraph (c) of subsection 86(1). For convenience, we will refer to this as “section 86(1)(c)”. Section 86(1)(c) allows an employer to terminate or reduce weekly payments if a medical practitioner, after examining a worker, says that the worker has recovered or the worker’s incapacity is no longer due to the work-caused injury.

The Implications

The main takeaway is that if an employer wishes to dispute liability on the basis that there was no liability to start with and there should be an interim order that they can stop paying compensation, then the employer cannot argue, in a section 81A referral, that the worker has recovered or the worker’s incapacity is now no longer due to his workplace injury. This is because those grounds impliedly accept that there was a liability to begin with but that is no longer the case. Further, section 86(1)(c) is concerned with the liability to continue to pay compensation.

However, the situation will be different if the section 81A is based on a gap in certification and an employer is relying on section 69(13). This will require a detailed legal analysis, so please feel free to get in touch if you have any questions.

Link to Case

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