A worker left a gap in medical certificates for over 14 days. The employer filed an application disputing liability to make payments on that basis. It was found that employers are able to treat a delayed certificate as a fresh claim for compensation, and dispute liability.
- The right of an employer to treat a medical certificate as a claim for compensation.
- Whether an employer may dispute continuing liability to pay medical benefits where there is a gap in certification.
Under section 69(13) of the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act), when there is a gap between the expiry of a medical certificate and a further certificate of more than 14 days, the employer is able to treat receipt of the further certificate as a fresh claim for compensation. As such, an employer is able to rely on section 81A of the Act to dispute liability, despite liability previously having been accepted or deemed.
Section 81A of the Act allows the Tribunal to make an order that weekly payments of compensation are not payable (section 81A(3)(c)), and also an order that the costs of medical benefits are not payable (section 81A(3)(d)), by an employer.
In this case, the worker made a claim for compensation with respect to a sprain injury to her lower spine sustained at work. Her employer accepted liability and started making compensation payments.
The worker provided continuing workers’ compensation medical certificates which certified incapacity to work. There was a gap of more than one month before another continuing workers’ compensation medical certificate was provided, certifying her incapacity.
As there had been more than 14 days between certificates, the employer filed a section 81A application to effectively treat the delayed medical certificate as a fresh claim, and it disputed ongoing liability for weekly payments and medical benefits under section 81A.
The Commissioner, at first instance, found that section 81A(3)(d) orders in relation to medical benefits could not be made where the section 81A jurisdiction was enlivened by section 69(13). The employer should instead use section 77AA of the Act to dispute liability for medical expenses. The Commissioner concluded that section 77AA provides the only mechanism for an employer to contest its liability to pay claims for medical benefits once liability had already been accepted or deemed.
The Issues on Appeal
The overarching issue before the Court was whether or not the Commissioner's construction of section 69(13) by reference to sections 77AA and 81A of the Act was correct.
Decision on Appeal
It was confirmed that the Tribunal can make an order under section 81A(3)(d), disputing liability for medical expenses in appropriate circumstances where there had been a gap of more than 14 days in medical certificates.
The Court could find no reason to limit the powers within section 81A. It concluded that once section 69(13) had been applied, each of the powers under sections 81A were available to the Tribunal, subject to the facts of each case.
In our view the decision of Justice Geason of the Supreme Court is correct.
Implications for you
Where there is a gap of certification exceeding 14 days, employers and insurers should consider whether there is benefit under section 81A in disputing the claim as a whole or elements of the benefits being paid. The advantage of this approach is that the worker will bear the burden of establishing an entitlement if the section 81A application is successful.